Jones v. Gulf Coast Health Care – FMLA Retaliation Timing, and the Risks of a Social Media Policy
May 4, 2017 by Matthew G. Hawk, Associate
On April 19, 2017, the Eleventh Circuit Court of Appeals handed down a decision in Rodney Jones v. Gulf Coast Health Care of Delaware, LLC, an appeal from the Middle District of Florida. Mr. Jones went out for rotator cuff surgery on September 26, 2014, with an intended return date of December 19, 2014; this leave was protected by the Family Medical Leave Act (“FMLA”). However, at the end of this leave, Jones’ doctor indicated he could not return to his job until February 1, 2015. Jones asked his employer for light duty, but did not submit a certification that he was fit to return to either full or light duty. Jones’ employer did, however, grant him another 30 days of non-FMLA medical leave. During this additional thirty days, Jones visited Busch Gardens twice and traveled to St. Martin. He shared photos of these trips with co-workers and on Facebook, which showed him, among other things, swimming in the ocean. When he returned to work, his supervisor confronted him with these photos and indicated that the company believed he had been well enough to return to work earlier. After a brief investigation, Jones was terminated.
The Eleventh Circuit upheld the lower court’s grant of summary judgment on Mr. Jones’ claim for interference with his FMLA rights, on the grounds that Jones was given all the FMLA leave to which he was entitled, the additional 30 days of leave was not FMLA leave, and Jones failed to submit an unqualified fitness-for-duty certification which the employer was entitled to request. The court reversed the lower court’s holding on Jones’ FMLA retaliation claim, however. In so doing, it answered an unresolved question in the Circuit’s published jurisprudence – from when should temporal proximity be measured, for purposes of a retaliation claim under the FMLA?
An FMLA retaliation claim asserts that the employer terminated the employee because the employee exercised his or her FMLA rights. Like all retaliation claims, this can potentially mean an employee who suspects they might be terminated can protect their position – in this case, by claiming FMLA leave prior to being terminated, knowing that their termination shortly thereafter could trigger an FMLA claim. Courts have typically been sensitive to this problem, and have held that close temporal proximity between the protected conduct and an adverse employment action, such as termination, is necessary to demonstrate a causal connection between the two. Generally, a gap of at least three or four months between the protected conduct and the adverse employment action defeats the causation requirement without more.
In many retaliation claims – for example, one premised on retaliation for reporting race discrimination – the question of time is a simple one, since the report itself is the protected conduct. In Jones, the Eleventh Circuit dealt with the question of whether the protected conduct under the FMLA “occurs” when the employee first takes FMLA leave, or when the employee returns to work. The Eleventh Circuit held that temporal proximity “should be measured from the last day of an employee’s FMLA leave until the adverse employment action at issue occurs.”
At first blush, utilizing the last day of FMLA leave as a benchmark rather than the first seems strange. After all, the employee going out on leave is the status change which results when the employee exercises his or her FMLA rights, and that change is what is ostensibly being retaliated against. The most logical reason for the court’s holding (which was among those mentioned in the decision) is that, if measured from the first day of 12 weeks of leave authorized by the FMLA, temporal proximity will never exist, as the employee will necessarily return to work only after a three-month gap. This highlights an essential tension between the well-established but court-created standards regarding the need for close temporal proximity on the one hand, and the FMLA’s statutory guarantee of 12 weeks of protected leave on the other. Interestingly, however, not every court has recognized this tension – the Eleventh Circuit cited its own unpublished precedent as well as a case from the Eighth Circuit, Sisk v. Picture People, Inc., as coming to the opposite conclusion. Because of this split between circuits, and because this issue speaks to the type of conduct the FMLA’s retaliation prong is intended to prevent, this timing question may ultimately need to be resolved by the U.S. Supreme Court.
The Eleventh Circuit did not merely reverse the lower court’s retaliation decision, however; it also determined that there were sufficient factual disputes to require a trial when the case was sent back to the lower court. A key part of this holding was based on the defendant’s reliance on its social media policy to provide grounds for Jones’ termination. The defendant’s social media policy stated that employees could be terminated if their social media posts had an adverse effect on co-workers. The defendant claimed that Jones’ photos had been anonymously reported and were the subject of discussion in the workplace, and thus created a morale problem. The court questioned that conclusion because the defendant failed to conduct further investigation into the anonymous report and could not identify any employee who was adversely affected by the photos. The court also determined that there was evidence that the purpose of the social media policy – based on the defendant’s own training – was to prevent employees from posting harmful or negative comments about the company’s staff or facilities, not merely to prevent social media postings that might damage morale. Since Jones’ vacation photos were unrelated to the defendant’s staff or facilities, they were not within the scope of the company’s social media policy.
What are the takeaways from the Jones case for employers? First, caution is warranted when disciplining or terminating an employee who has been on FMLA leave, particularly if that discipline or termination arises out of conduct dating from, or immediately following, the period of protected leave. Gauging the gap between FMLA leave and adverse employment actions from the employee’s return to duty means the employee should be able to demonstrate a causal connection between the two for months after his or her return to work. While this doesn’t prohibit discipline or termination in such circumstances, an employer needs to ensure that their legitimate, non-retaliatory reason for the discipline or termination is well-documented and unrelated to the employee’s FMLA leave.
Second, an employer who plans to rely on violation of a social media policy as grounds for discipline or termination may want to think carefully about whether the employee’s misdeeds reflect the type of conduct the social media policy was intended to prevent. Social media policies have been a subject of discussion for years in the labor realm, where the concern is whether they may restrict the rights of employees to engage in concerted union activity. There have only been a few cases where such policies appear as a factor in discrimination and retaliation cases to date, however. What the Eleventh Circuit signals in Jones is that such policies must closely align with the rationale for discipline or termination. If not, the employer risks creating the appearance of an inconsistency, which may be interpreted as a pretext for wrongful conduct.
If you would like more information on the foregoing, please do not hesitate to contact Matthew G. Hawk in our Tallahassee office at (850) 222-8121.
Matthew G. Hawk, Associate