Lab Assistant Fired for Bullying After Leave Lacks FMLA Retaliation Claim, Judge Decides
Nov. 1 –A lab assistant for a Massachusetts health care system who was fired for alleged co-worker bullying and other performance problems lacks a triable Family and Medical Leave Act retaliation claim based on the two-month gap between her termination and her use of medical leave, a federal judge in Massachusetts ruled Oct. 29 ( Wagner v. Baystate Health, Inc., 2013 BL 298741, D. Mass., No. 12-30146, 10/29/13).
Granting partial summary judgment to Baystate Health Inc., Judge Michael A. Ponsor of the U.S. District Court for the District of Massachusetts found that Margaret Wagner received a final written insubordination warning six weeks after she returned from FMLA leave, and was fired two weeks later.
Although the close timing between Wagner’s protected activity and the adverse employment action allows her to establish a prima facie case of FMLA retaliation, the court said that evidence alone is insufficient to further demonstrate pretext in Baystate’s stated performance reasons for Wagner’s discharge.
Co-Workers Complained About Assistant
Wagner joined Baystate as a per diem lab assistant in 2004 and became a lead lab assistant two years later.
In 2007, Wagner began receiving mixed performance reviews that raised concerns about her interpersonal skills, ability to accept criticism and attitude during difficult situations, the court recounted.
Her 2008 evaluation recommended that she “maintain a professional and calm demeanor when talking with staff, lead, and superiors, especially when having difficult conversations.”
By 2009, Wagner received a performance review stating that she needed to “treat all contacts with respect” and be “mindful of her demeanor.”
That same year, Wagner’s supervisor, JoAnne Palmer, received complaints about Wagner from three employees. They claimed that Wagner did not give assignments fairly and otherwise created an “uncomfortable” work environment.
In August 2010, Wagner reported to Baystate’s compliance hotline that she believed four of her subordinates had violated the company’s policy against sexual harassment. She claimed that her supervisor thereafter became distant.
The next month, Wagner had surgery to replace a disc in her neck and took FMLA leave to recover. During her absence, workers continued to complain about Wagner.
Wagner returned to work Oct. 12 and had a meeting with Palmer to discuss the work environment issues. Baystate’s human resources department also conducted an “environmental scan” to evaluate workplace issues. It concluded that Wagner purportedly failed to encourage teamwork, used a “negative tone,” displayed favoritism and engaged in what some employees described as “bullying.”
Despite these findings, Wagner allegedly continued to be disrespectful to co-workers and did not finish assignments. In response, Baystate on Nov. 23 issued her a final written warning for insubordination that also included a performance improvement plan.
Seven days later, Wagner presented HR with a draft retaliation complaint that she intended to submit to the Massachusetts Commission Against Discrimination. She filed the complaint Dec. 1, and Baystate fired Wagner Dec. 6–ostensibly because her inappropriate behavior had not improved.
Wagner ultimately sued Baystate in a state court, alleging FMLA retaliation and retaliation for reporting purported sexual harassment in violation of state law. Baystate removed the suit to federal district court and moved for partial summary judgment on Wagner’s FMLA on claim.
Temporal Proximity Establishes Causal Link
To prevail on that claim, the district court explained, Wagner must establish a prima facie case by showing a causal connection between her statutorily protected use of FMLA leave and her termination.
In the U.S. Court of Appeals for the First Circuit, close timing between a protected activity and an adverse action is “strongly suggestive of retaliation,” the court said. It added that the First Circuit previously has held that one- and two-month gaps can be “ ’close enough’ to imply retaliation for purposes of the prima facie case.”
Here, the court said, Baystate disciplined Wagner six weeks after she returned from FMLA leave and fired her two weeks later.
“This timing is close enough to suggest a retaliatory motive as a preliminary matter,” the court said. “A reasonable jury, looking solely at the sequence of events–without any responsive explanation by Defendant–could conclude that Defendant unlawfully retaliated against Plaintiff.”
Timing Alone Insufficient for Pretext
However, Baystate presented a legitimate, non-retaliatory reason for firing Wagner based on her purported bullying of co-workers and poor performance, the court said.
Baystate has “pointed to a documented pattern of increasingly negative performance evaluations,” which began in 2007 and became “more serious as time progressed,” the court said.
Additionally, it said, Wagner’s alleged poor performance continued even after Baystate allowed her the opportunity to improve her behavior, thus providing “a fair explanation” for Baystate’s decision to reprimand and fire Wagner.
To survive summary judgment, Wagner must offer evidence that Baystate’s explanation was a pretext for FMLA retaliation, the court said. It ruled that Wagner failed to do so, as she relied only on the temporal proximity between her use of FMLA leave and her termination.
The First Circuit has found that although evidence of a temporal connection alone may be adequate to raise a prima facie case of retaliation, it is insufficient to establish pretext, the district court said.
“Although the adverse action did occur after Plaintiff’s FMLA leave, the surge of negative reports about Plaintiff and her failure to respond to the warning and performance improvement plan offer an explanation for why the termination occurred when [it] did,” the court said.
Given that explanation, timing alone “does not suggest retaliation,” and Wagner offered no other evidence to either directly or indirectly imply a retaliatory motive in Baystate’s decision to fire her, the court said in granting summary judgment to Baystate.
“Without any basis beyond timing, a reasonable jury simply could not find that Defendant’s explanation constitutes a pretext for retaliation based on her invocation of her FMLA rights,” the court ruled.
The court retained supplemental jurisdiction to hear Wagner’s state law retaliation claim.
Tani E. Sapirstein of Sapirstein & Sapirstein in Springfield, Mass., represented Wagner. Amelia J. Holstrom, Jasmin M. Rojas and Marylou Fabbo of Skoler, Abbott & Presser in Springfield, Mass., represented Baystate.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/Margaret_Wagner_v_Baystate_Health_Inc_Docket_No_312cv30146_D_Mass.