Another decision favorable to employers in regard to employees who attempt to avoid otherwise appropriate discipline or termination by attempting to characterize actions as protected under FMLA or other federally protected reasons.
Editor’s comment: When an employee is appropriately disciplined and terminated within the set company guidelines, and where the employee alleges leave for medical related causes, the testimony of the terminated employee alone is not sufficient to show a chronic condition or to support a claim of ongoing medical care absent other medical evidence. It is also interesting to note that the parent company in these situations is entitled to summary judgment because they generally do not directly control the employee.
In Caskey v. Colgate-Palmolive Co. (No. 06-2919 July 24, 2008), the Seventh Circuit Court of Appeals on appeal from the United States District Court for the Southern District of Indiana was faced with a claim where a worker who was disciplined and ultimately terminated and then sued her former employer and its parent company for interfering with her right to medical leave, in violation of the Family and Medical Leave Act; discriminated against her because of her sex, in violation of Title VII of the Civil Rights Act of 1964; and retaliated against her for exercising her rights under the FMLA, Title VII, and Indiana law. The district court granted summary judgment for the defendants, finding Caskey’s discipline was lawful and her termination resulted from three unexcused absences from work.
Hill’s Pet Nutrition, Inc. (“Hill’s”) produces pet food, and Colgate-Palmolive Co. (“Colgate”) is their corporate parent. Caskey began working as a technician at the Richmond, Indiana plant of Hill’s in 1995. One of her primary duties involved operating an extruder, a piece of heavy machinery that, at the Hill’s plant, pushed unprocessed dog food through a grinder and then sliced the food into smaller pieces known as “kibbles.”
Hill’s had a detailed policy regarding performance, discipline and termination with a graduated process of discipline up to the termination. Hill’s also provided paid FMLA but did not have “sick days” so any leave not covered by FMLA or some other form of protected leave was determined to be an unexcused absence. Caskey had received FML at times and had also accumulated some unexcused absences which had advanced her in the discipline program. Caskey had also been disciplined for job performance after 50,000 pounds of reject “kibble” had been produced and 20,000 pounds had been packaged while she was in charge of quality control on a shift. This placed Caskey into the stage of discipline just prior to termination.
Caskey signed a letter of recommitment to the job with certain conditions and then violated the rules by requesting time off without 48 hours notice—but was not terminated due to that violation. Caskey then began to treat for depression and was taken off work by a physician qualifying for FML.
After returning from FML, Caskey took a birthday holiday 4 days later and took vacation the following two days. She then saw an employment assistance counselor regarding her depression. The counselor, like her treating physician, did not impose any work restrictions on Caskey. The following day, Caskey called a teammate at the Hill’s plant and said she was “sick” and was going to miss work for the following two days. She then failed to report to work on May 21, 22, and 27. Caskey did not receive any medical treatment for these absences, and her next visit to a physician occurred in August for an unrelated condition. On May 29, Hill’s sent Caskey a letter stating that she had “self-terminated” by not reporting to work on those three days (May 21, 22, 27).
The Court granted summary judgment for several reasons. Initially, Caskey did not present sufficient evidence to show that the string of absences starting on May 21 was the result of a serious health condition. At no point in late May did Caskey receive inpatient treatment in any medical facility. The FMLA regulations define “continuing treatment by a health care provider” as including, in relevant part, (1) a period of incapacity of more than three consecutive calendar days that also involves either treatment two or more times by a health care provider or a regimen of continuing treatment; or (2) any period of incapacity due to a chronic serious health condition, which requires periodic treatment by a health care provider.
It did not matter whether her discipline or her termination qualified as the adverse action, because she failed to present enough evidence on the third element—connecting her FML with her discipline or termination. Caskey can rely on two types of evidence in showing that her protected activity motivated Hill’s action under the direct method of proof: “direct evidence” or “circumstantial evidence.” The court found Caskey presented no direct evidence of a causal connection for both her FMLA or Title VII retaliation claims, and insufficient circumstantial evidence for her FMLA claim. Caskey pointed to some circumstantial evidence for her Title VII retaliation claim but her vague reference to a pattern, without any detail regarding the context of the other terminations, creates too sparse a trail to create circumstantial evidence of a causal connection. Caskey also did not present evidence of a similarly situated employee who was treated more favorably. Moreover, Caskey did not meet the legitimate expectations of her employer. She had progressed through the disciplinary process to the final stage, she did not follow the explicit agreement under the letter of recommitment to have no absences and use no emergency vacation time, and she did not follow the proper procedures for giving notice of any intended time off.
Turning finally to her state law wrongful termination claim, Caskey contended she was fired in retaliation for filing a workers’ compensation claim. Caskey failed to make a sufficient causal connection here. She relied heavily on the timing of her discipline—i.e., that she was disciplined shortly after her injury, and terminated shortly after that. This timeline omitted several other intervening events, including the series of unexcused absences in late May in violation of the Performance Agreement. And timing evidence alone rarely creates a jury issue on causation. The Court ruled the district court correctly found the dearth of evidence establishing a causal connection doomed her state law retaliation claim.
This case highlights several legal keys for employers which KC&A lawyers cite on a daily basis—DOCUMENT, DOCUMENT, DOCUMENT & follow your company policy as closely as possible to ensure questionable claims can be defended appropriately. This article was researched and written by Shawn R. Biery, J.D. If you have thoughts and comments or need the case citation, please send a reply to sbiery@keefe-law.com.
