The Lawletter Vol 41 No 5
A recent case from the Second Circuit Court of Appeals sets forth new Second Circuit standards for addressing certain issues under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601–2654, and the employment discrimination provisions of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12111–12117, and provides a set of facts on how not to respond to an employee's request for FMLA leave. Graziadio v. Culinary Inst. of Am., No. 15-888-CV, 2016 WL 1055742 (2d Cir. Mar. 17, 2016).
The plaintiff, Cathleen Graziadio, had been employed at the Culinary Institute of America ("CIA") as a Payroll Administrator for five years on June 6, 2012, when she notified her direct supervisor that she needed to take FMLA leave to care for her 17-year-old son, who had been hospitalized as a result of previously undiagnosed Type I diabetes. At Graziadio's request, the necessary FMLA paperwork was forwarded to her by the appropriate employee. Graziadio returned to work on June 18, 2012, and on or about June 27, 2012, she submitted a medical certification supporting her need for leave to care for the 17-year-old son. That same day, June 27, Graziadio's 12-year-old son underwent surgery after having fractured his leg playing basketball, and Graziadio promptly notified her supervisor that she would need immediate leave to care for her son and that she expected to return the week of July 9 at least part-time. On July 9, Graziadio responded to her supervisor's request for an update, stating that she would need to work a reduced, three-day-week schedule until mid-to-late August and could return on Thursday, July 12, if that schedule were approved. She also asked, as she had in prior emails, if there was "any further documentation that [the CIA] may need from me." Id. at *1. At this point, the supervisor reached out to the CIA's Director of Human Resources, and matters got complicated.
Despite Graziadio's numerous attempts to communicate with her supervisor and the Director of Human Resources by telephone and by email, neither responded to her inquiries until July 17, when the Director sent Graziadio a letter stating that her FMLA paperwork did not justify her absences and asking for "updated paperwork to this office which addresses this deficiency." Id. There followed a series of emails in which Graziadio attempted to update the Director on her son's status and asked for guidance on what was needed; the Director responded in generalities without ever telling Graziadio what was needed. The Director then stated that she would no longer discuss the matter by email and asked for dates when Graziadio was available to meet. The Director apparently ignored Graziadio's availability and never set a meeting.
At this point, Graziadio retained an attorney. The CIA's counsel sent Graziadio's attorney an email on August 30, 2012 outlining what was needed, but Graziadio's attorney did not see the email until September 4 due to his own surgery. The CIA fired Graziadio on September 11, 2012 for abandoning her position. Graziadio sued the CIA, her supervisor, and the Director of Human Resources for interference with FMLA leave, for FMLA retaliation, and for associational discrimination under the ADA. The district court granted the defendants' motion for summary judgment. The Second Circuit reversed the district court's judgment regarding the FMLA claims but affirmed the judgment in favor of defendants on the ADA claim.
Before addressing the substantive issues, the appellate court considered whether the Director of Human Resources could be an "employer" within the meaning of the FMLA. Graziadio did not pursue claims against her direct supervisor on appeal. Adopting the "economic realities test," the court held that whether an individual could be considered an employer depends upon a totality-of-the-circumstances review of the following factors: "whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records." Id. at *4 (quoting Zheng v. Liberty Apparel Co., 355 F.3d 61, 75 (2d Cir. 2003)). After an exhaustive review of the evidence under the economic realities test, the court held that a reasonable jury could find that the Director exercised sufficient control of Graziadio's employment to be held liable as an employer under the FMLA.
Turning to the substantive claims, the Second Circuit started by formally adopting a standard for proof of a prima facie case of interference with FMLA rights.
[T]o prevail on a claim of interference with her FMLA rights, a plaintiff must establish: 1) that she is an eligible employee under the FMLA; 2) that the defendant is an employer as defined by the FMLA; 3) that she was entitled to take leave under the FMLA; 4) that she gave notice to the defendant of her intention to take leave; and 5) that she was denied benefits to which she was entitled under the FMLA.
Id. at *6. Carefully reviewing the evidence, the appellate court rejected the district court's conclusion that Graziadio could not satisfy elements 4 and 5 on the grounds that she "could not establish either a) that CIA had actually denied her leave to care for [the 17-year-old son], or b) that she had fulfilled her obligation to provide an adequate medical certification and that she was therefore entitled to take leave for [the 12-year-old son]." Id. at *7.
As for the retaliation claim, the Second Circuit had little trouble finding that Graziadio had presented evidence showing that the claim of job abandonment was worthy of disbelief and, therefore, pretextual. Furthermore, the court noted that Graziadio offered other evidence of pretext, including that her access to the CIA computer network had been suspended on August 15, and a CIA employee had been asked as early as July to draft a job description for a temporary employee to replace Graziadio.
Moving on to the ADA claim, the Second Circuit
join[ed] our sister circuits in holding that, to sustain an "associational discrimination" claim under the ADA, a plaintiff must first make out a prima facie case by establishing: 1) that she was qualified for the job at the time of an adverse employment action; 2) that she was subjected to adverse employment action; 3) that she was known at the time to have a relative or associate with a disability; and 4) that the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer's decision.
Id. at *13. The court described
"[t]hree types of situation[s]" or theories that would give rise to a claim of associational discrimination: 1) "expense," in which an employee suffers adverse action because of his association with a disabled individual covered by the employer's insurance, which the employer believes (rightly or wrongly) will be costly; 2) "disability by association," in which the employer fears that the employee may contract or is genetically predisposed to develop the disability of the person with whom he is associated; and 3) "distraction," in which the employer fears that the employee will be inattentive at work due to the disability of the disabled person.
Id. (quoting Larimer v. IBM Corp., 370 F.3d 698, 700 (7th Cir. 2004)). Determining that this case fit within the category of "distraction," the court concluded that Graziadio did not make out a prima facie case of associational discrimination, because she did not present evidence that the CIA had fired her because she would be distracted at work by her son's illness; rather, she offered evidence that the CIA terminated her because it believed she had taken off too much time from work. She did not show that her employer feared she would be inattentive at work but, rather, that her employer feared she would not be at work at all because of a need for accommodation to which she was not entitled under the ADA.
Whatever the outcome on remand, it is clear that the employer might have avoided litigation—and the Director of Human Resources certainly would not have risked personal liability—if the employer had communicated clearly with its employee and responded about what was needed to qualify for FMLA leave.