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Worker Prevails on FMLA Retaliation Claim

By James M. Paul  6/19/2014
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A welder who, after exhausting his Family and Medical Leave Act (FMLA) leave entitlement,  unsuccessfully reapplied for a posted opening of his former job, properly obtained a jury verdict for $56,000 as lost compensation and deserved an additional $56,000 as liquidated damages for the employer’s violation, according to the 8th U.S. Circuit Court of Appeals.

After being employed for nine years by the city of Hot Springs, Ark., and being promoted midway through his employment, Wayne Jackson was hospitalized and underwent surgery due to complications with his gallbladder and pancreas. Jackson first used his accrued paid sick leave, then his 12-week FMLA entitlement, and finally an additional 30 days of personal leave. When he still was unable to return to work, the city terminated Jackson’s employment.

After Jackson’s doctor released him to work, and in response to the public posting of his former position, Jackson reapplied for employment. Jackson’s former supervisor and a co-worker rated Jackson the highest of the three interviewees for the position and recommended that Jackson be rehired. In response to the request for approval of Jackson’s rehire, the next-level supervisor stated: “I think it is a mistake, however, I will not micromanage. I will simply hold them accountable for the decision.” Nevertheless, that higher-level supervisor later concluded that the interviews were not properly conducted and required another round of interviews. Jackson was not chosen for an interview or rehired the second time around.

Although Jackson’s wrongful discharge and disability discrimination claims were dismissed, his FMLA retaliation claim was submitted to the jury. Jackson obtained a verdict awarding him $56,000 for lost compensation and $25,000 for emotional distress, although the jury also found that the city had acted in good faith. Accordingly, the district court denied Jackson’s request for liquidated damages based on that good-faith finding and also vacated the jury’s award of emotional distress damages because those were not recoverable under the FMLA. Both parties appealed.

Regarding the city’s appeal, the 8th Circuit concluded that Jackson presented sufficient evidence for the jury to conclude that he was able to perform the essential functions of the job at the time of applying for rehire, based on his doctor’s release and the immediate supervisor’s determinations that he could operate the machinery and was the most qualified applicant. Even though Jackson testified that he could not perform some of the lifting requirements, the city’s safety coordinator had told workers they should get help when performing heavy lifting for safety reasons. Finally, Jackson’s use of prescription painkillers did not preclude him from safely operating the machinery because the medication warned only that Jackson should not operate machinery “until you know how your body reacts to the medicine,” and Jackson testified that he had built up tolerance to the painkillers.

The 8th Circuit also quickly disposed of the city’s argument that Jackson failed to present sufficient evidence of causation to support the retaliation claim. The higher-level supervisor’s comment that rehiring Jackson “would be a mistake” and decision that the interview process needed to be redone–even after the immediate supervisor and co-worker recommended Jackson for rehire–supplied sufficient evidence to support an inference of a retaliatory motive. Moreover, the higher-level supervisor’s reasoning changed from the time Jackson was not rehired during the first round of interviews (i.e., that the interview procedures were not followed) versus Jackson’s rejection during the second round (i.e., that Jackson had inferior diagnostic and computer skills as compared to the other candidates). Therefore, the 8th Circuit held that this change in reasoning discredited the city’s reasons for not rehiring Jackson.

Jackson’s cross-appeal argued that the district court should not have vacated the award of emotional damages and that the district court abused its discretion in denying liquidated damages under the FMLA. On the first point, the 8th Circuit held that it is clear emotional distress damages are not available under the FMLA. However, Jackson’s second point on appeal was granted because the FMLA states employers “shall be liable” for liquidated damages upon a finding of a statutory violation. Even though the jury determined the city acted in good faith in not rehiring Jackson, the 8th Circuit explained that this determination was merely advisory and should have been overruled by the district court in light of the strong presumption in favor of liquidated damages. This was especially the case when the district court did not provide any factual support for a finding of good faith, which would have been required to deny Jackson his liquidated damages.

Jackson v. City of Hot Springs, 8th Cir., No. 13-1772 (May 12, 2014).

Professional Pointer: This case demonstrates that overruling a supervisor’s recommendation and refusing to rehire an employee who previously used and exhausted his medical leave entitlement can be risky. Moreover, changing the reasons for a hiring decision can easily appear as a cover-up for retaliation and provide the evidence needed to show a causal connection.

James M. Paul is a shareholder in the St. Louis office of Ogletree Deakins, an international labor and employment law firm representing management.

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