Steven L. Brenneman, Teri F. Thompson, Elizabeth A. Ward, Editors
Ford & Harrison LLP

Vol. 18, No. 11
June 2008

FAMILY AND MEDICAL LEAVE

District 70 taken to school for alleged retaliation

Employers cite intermittent leave as one of the most difficult issues to handle under the Family and Medical Leave Act (FMLA). A recent case provides a cautionary tale when you're considering your options for dealing with the problems that may arise from an employee's FMLA-protected intermittent absenteeism.

Part-time attendance, full-time workload

Debra Lewis was a bookkeeper and treasurer for Freeberg Community School District No. 70, a public school system in St. Clair County. She performed her job well until 2004, when both of her parents became terminally ill and she attempted to care for them at home. Her father died on May 23, 2004, and a week later, her mother returned home from the hospital and needed constant care. After that, she frequently missed work to care for her mother.

Lewis' immediate supervisor, Dr. Rob Hawkins, the superintendent, was aware that she was taking time off to care for her parents and gave her permission to do so. In the 2004 fiscal year, she was absent a total of 72.5 days out of a possible 242 workdays. During that time, with the encouragement of Hawkins, she took much of her bookkeeping work home with her and worked whenever she could, including evenings and weekends.

At a June school board meeting, Hawkins explained some of the hardships Lewis' absences were causing the district ― she was falling behind in her work, he had been forced to make a list of priorities and pay some of the district's bills himself, and the office didn't function as smoothly without her there to help answer phones, dispose of mail, and be available for vendor calls. Hawkins sent Lewis a letter advising her that she should resume a regular 8:00 a.m. to 4:00 p.m. work schedule by the start of the next school year.

In September and October 2004, however, Lewis continued to miss significant time from work. At the October board meeting, Hawkins again mentioned the inconveniences caused by her absences and described a number of "performance" problems that he claimed were unrelated to her absences, including late tax payments to the IRS, denial of credit due to a blemish on the district's credit check, a completion report that hadn't been completed, and bills that weren't paid on time. One board member wanted to fire Lewis for absenteeism and poor performance. But Hawkins noted that the district faced potential legal liability under the FMLA and suggested instead that she be approached and offered unpaid FMLA leave.

The board approved that approach, and Lewis began taking intermittent FMLA leave. During that time, however, she was still asked to perform all the functions of a bookkeeper. She continued to do much of the district's bookkeeping work at night and on weekends but was never credited for her time spent working at home and wasn't paid for days on which she took FMLA leave.

Countdown to termination

At a November 2004 board meeting, a number of board members again talked about firing Lewis but expressed concern about potential legal liability under the FMLA. They called the law "just ludicrous" and declared that it was a "fiasco that you can't just say thank you for your services, good-bye" because of "FMLA and Bill Clinton." Hawkins was encouraged to continue documenting any performance-related problems in order to build a case against her that was unrelated to her absences.

In March 2005, Lewis received a performance review from Hawkins in which she was given two rankings of "very good," seven rankings of "satisfactory," and four rankings of "needs improvement." The superintendent noted in the review that many of the performance problems had become an issue as a direct result of her reduced- hour schedule.

The school board again discussed Lewis at a board meeting later that month, but that portion of the meeting wasn't tape-recorded as legally mandated. The district offered the trial court two conflicting explanations for not recording the meeting. The written minutes, however, indicated that Hawkins recommended that Lewis be replaced as bookkeeper. The board voted in favor of his recommendation.

Hawkins sent Lewis a letter offering her a choice between resigning or accepting a permanent demotion to a teacher's assistant position at a much lower salary because "[i]t was determined that you miss too much work to meet the essential functions of your present assignment." She chose the demotion but sought reinstatement to her bookkeeper job in August 2005. The district denied her request, citing further performance problems that had been discovered after she was reassigned.

Lewis sued for retaliation under the FMLA. The U.S. District Court for the Southern District of Illinois dismissed her claims before trial after concluding that she had been demoted because of performance issues, not because of her absenteeism. Lewis appealed.

Reasons for bookkeeper's demotion don't add up

On appeal, the Seventh U.S. Circuit Court of Appeals (which covers Illinois) found enough evidence to suggest that Lewis' FMLA leave was a substantial motivating factor in the school district's demotion decision. For example, Hawkins' letter offered only one justification for the district's action ― that she missed too much work to perform the essential functions of her job. Although aware that she was missing work to care for her parents, the district initially didn't place her on FMLA leave. Rather than placing her on leave, it built a case for her discharge on the grounds of incompetence.

Further, after it later placed her on intermittent FMLA leave, the district held Lewis to the unrealistic expectation that she should accomplish satisfactorily all the duties of a full-time bookkeeper while she was working and being paid on an essentially part-time basis. The district didn't take adequate steps to assuage the impact of her FMLA-protected intermittent leave and instead demoted her.

While the district argued that its decision to demote Lewis was based on performance problems unrelated to her absenteeism, a jury could reasonably infer that those problems were the direct result of its failure to respond appropriately to the challenges presented by her FMLA-protected absences, the Seventh Circuit said. As a result, she will return to the lower court to have a jury consider her claims. Lewis v. School District No. 70, No. 06-4435 (7th Cir., Apr. 17, 2007).

Lessons learned

You have limited options when an employee like Lewis misses work because of FMLA- protected intermittent leave. However, as the Seventh Circuit noted, there were some things the school district could have done, but didn't. It could have shifted some of Lewis' bookkeeping duties to other employees during the time she was taking FMLA leave. It could have hired part-time help for the bookkeeper position. It's also possible that the district could have transferred her to another position (like teacher's assistant) with equivalent pay and benefits on a temporary basis that would have better accommodated her intermittent leave, although there's some dispute about whether FMLA regulations permit such a transfer when the intermittent leave isn't being taken on a "foreseeable" schedule.

In any event, as the school district learned, demoting an employee because of her FMLA leave isn't an acceptable option. The district is now left to try to convince a jury that it demoted Lewis for legitimate performance reasons ― not in retaliation for her FMLA leave.

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