Protecting Your Livelihood Blog

Pereda v. Brookdale Senior Living Communities, Inc.

United States Court of Appeals, Eleventh Circuit.

Kathryn Pereda appealed the dismissal of her complaint, which alleged interference and retaliation under the Family Medical Leave Act of 1993 ("FMLA"). Brookdale hired Ms. Pereda in 2008, and was informed of her pregnancy and request for FMLA leave in late 2009. Ms. Pereda claims that after learning of her pregnancy, Brookdale began harassing her and causing stress that complicated her pregnancy. She also alleges that management criticized her job performance and placed her on a performance improvement plant with "unattainable goals."

Ms Pereda alleges that she was told by management that she could make doctors visits, utilizing her accrued sick and personal leave. After placing her on the performance improvement plan, Brookdale began writing her up for making such doctors visits. She also alleges that management told her she was eligible for non-FMLA leave. She took time off after her doctor informed her she needed bed rest. She had left a message with the Executive Director in oder to inform them of her condition, but never heard back until several days later when she was informed that she was terminated.

The complaint, which alleged interference and retaliation as to Ms. Pereda's assertion of her FMLA rights, was dismissed by the trial court. The lower court determined she was not entitled to FMLA leave at the time that she requested it. If in fact she was not eligible for FMLA leave, she could not have engaged in a protected activity and there can be no retaliation against her. Under the FMLA, a plaintiff can only bring two types of claims: interference and retaliation. The court dismissed her complaint on both claims.

In order to be eligible for FMLA protections, an employee must have worked the requisite time (at least 12 months for at least 1,250 hours) and be entitled to leave. It is undisputed that at the time Ms. Pereda requested leave she had not worked the requisite amount of time to be eligible and had not yet been entitled to the leave by the birth of her child. It is also undisputed that she would have been entitled to her FMLA rights had she given birth to the child at the time she began her requested leave.

Ms. Pereda argued on appeal that women will cease to provide adequate notice to their employers out of fear that they will be terminated/retaliated against prior to giving birth to the child. The court agreed that following the district court's ruling would violate those purposes for which the FMLA was enacted. "Without protecting pre-eligibility interference, a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible." 

The court established that employees are protected from interference prior to the occurrence of a "triggering event," such as childbirth. The FMLA regulatory scheme must protect pre-eligible employees such as Pereda, who put their employers on notice, prior to eligibility, regarding their post-eligibility leave request. A pre-eligible employee has a cause of action of interference if an employer terminates her in order to avoid having to accommodate the employee with rightful FMLA leave rights once that employee becomes eligible. 

A prima facie cause of FMLA retaliation requestes that Ms. Pereda show that 1) she engaged in a statutorily protected activity, 2) he suffered an adverse employment decision, and 3) the decision was casually related to a protected activity. The court held that a pre-eligible request for post-eligible leave is a protected activity because the FMLA aims to support both employees in the process of exercising their FMLA rights and employers in planning for the absence of that employee. It is for these reasons that the court reversed the district court's judgment and remanded for further proceedings.

United States Court of Appeals, Eleventh Circuit.

Reginald Lee, an African American male employee of U.S. Steel Corporation, appealed the trial court's decision to grant summary judgment against him. His claims included interference with his right to exercise the Family Medical Leave Act ("FMLA"), as well as retaliation and race discrimination as a reason for his subsequent termination. The eleventh circuit court of appeals upheld this ruling for summary judgment.  

Interference with FMLA

In order to have proved a prima facie case of Interference, Lee needed to give adequate verbal notice (traditionally 30 days) of his intent to take FMLA leave. Although a plaintiff employee need not specifically mention the FMLA, he must make them aware that his (or his family member’s) injury or illness is of a serious enough nature to render the employee eligible for such leave. He must also establish his intent to take such leave with sufficient notice. 

Lee never formally applied for FMLA leave, nor did he provide sufficient notice of his intent to take a medically substantiated leave. Medical certifications were insufficient to establish that his condition rendered him incapacitated. Lee’s lack of notice, as well as his lack of sufficient proof that his injury was of a severity that prevented him from fulfilling his job requirements, justified summary judgment for the employer on the interference claim.

FMLA Retaliation

In order to have proved a prima facie case of FMLA retaliation, Lee needed to prove that 1) he engaged in statutorily protected activity, 2) suffered an adverse employment decision, 3) the decision for termination was causally related to the protected activity. Even if Lee had satisfied requirements 1 and 2, there is an established exception to requirement 3, which states that if the employer did not know that the employee engaged in protected conduct, they cannot be held to have made the terminated decision based on that protected conduct. Lee did not qualify for FMLA because did not give his employer adequate notice of his intent to take FMLA. Lee’s lack of notice allowed the employer to claim the “no knowledge” exception, and to win summary judgment on the FMLA retaliation claim, a win which was upheld in this appeal.

Race Discrimination 

In order to have proved a prima facie case of race discrimination, Lee needed to prove 1) that he belongs to a racial minority, 2) that he was subjected to an adverse job action, 3) that his employer treated similarly situated employees outside his classification more favorably, and 4) he was qualified to do the job. There is no dispute that he belonged to a protected racial minority, that he was subject to an adverse job action through his termination, and that he was qualified to do his job. There is dispute, however, over whether the person he claims was was treated more favorably, was in fact similarly situated.

The trial court found that the comparative that Lee presented, which he claimed was similarly situated, was in fact not an equivalent scenario. The comparative, unlike Lee, provided the employer with  adequate notice of intent to take FMLA. In Lee's case, though, he had incurred enough absent days prior to this situation to warrant disciplinary action. 

The Plaintiff, David Paul, brought this action against his former employer, Americold, for violation of Title VII of the Civil Rights Act of 1964. Paul claimed that Americold discriminated against him based on his race when they 1) Failed to promote him to the supervisor position in 2007, 2) Failed to promote him to the auditor position in 2008, and 3) Terminated his employment. Ultimately, Americold's motion for summary judgment was granted and the charges dismissed. Paul has appealed this determination. 

According to case law, summary judgment is appropriate when there is not genuine issue of material fact. Such is determined when the evidence and all its inferences is viewed in light most favorable to the non-movant, or in this case, David Paul. Even in this light, the court determined that the trial court did not err in granting summary judgement. 

Failure to Promote to Supervisor:

In order to prove a prima facie case, a plaintiff must prove 1) he is a member of a protected group, 2) he was qualified for an applied for the promotion, 4) he was rejected in spite of his qualifications, and 4) the person who received the promotion was not a member of the plaintiff's protected group. While Paul argued that his educational attainment made him more qualified than the individual who received the position, he failed to establish facts to support that argument. Due to this failure, summary judgment was upheld on the claim of failure to promote to position of supervisor. 

Failure to Promote to Auditor:

In order to determine qualification disputes, the plaintiff must establish a disparity in qualifications "of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff". (Springer, 509 F.3d at 1349) The court determined that Paul had provided no evidence that he had internal auditing or warehouse control experience, and that Americold had viewed these attributes as important when selecting a qualified candidate. The trial court was upheld in granting summary judgment on the failure to promote to the auditor position claim.

Wrongful Termination:

In order to establish a prima facie case, the plaintiff must establish that he was 1) a member of a protected class, 2) qualified to do the job, 3) subjected to an adverse employment action, and 4) replaced by someone outside the protected class. Paul failed to meet the third element by providing no evidence that Americold had treated a similarly situated employee differently. Americold had also provided a legitimate and non-discriminatory reason for terminating Paul's employment, which then shifted the burden to him to prove that reason to be pretextual. Paul did not dispute that he made the errors listed by Americold, nor did he provide any evidence to support his claim that they documented the errors only so they would have an excuse to fire him. For these reasons, the trial court’s grant of summary judgment to Americold on Paul’s claim of wrongful termination was also upheld. 

During his employment, Mr. Guy was teaching second and third grade “EBD” students. EBD students are so designated because their disability entails persistent emotional or behavioral responses that may interfere with their learning ability. When he was teaching at Pine Villa, the principal, Ms. Neyra, claimed that Mr. Guy had difficulty teaching his class, and the test data for his students showed no improvement in their perform  ance.

Ms. Neyra requested and received professional assistance from the district to assist Mr. Guy in the areas in which she perceived his performance to be lacking. As a result, she did not place him on performance probation that year. Instead, she hoped that affording him the opportunity to obtain professional performance assistance would better help him improve his teaching skills as well as help his students.

The next school year, an interventionist, curriculum specialist, and full-time paraprofessional were assigned to assist Mr. Guy in teaching his students. Five evaluations were conducted which determined Mr. Guy had "incomplete lesson plans, had failed to provide clear, specific, and sequential directions and guidance, did not use teaching strategies that engaged the students, and did not clarify the lesson for students." 

Mr. Guy was informed of these deficiencies and was placed on Support Dialogue for a 21-day period in which he was required to engage in mutually-determined strategies to resolve the issues pointed out on the performance review. After the assistant-principal performed an evaluation during his class on December 7, 2010, Mr. Guy was given another improvement plan to adhere to. 

The principal then sat in on Mr. Guy’s class on February 28, 2011, during which she determined him to still be deficient in many of the same areas. She provided him with another improvement plan. Ms. Nyra's decision to request the termination of Mr. Guy was said to be based on these?failing performance reviews, [do you mean the performance reviews for this latter improvement plan?] coupled with his students' poor performance on several tests: the interim assessments in math and reading, the Florida Assessments for Instruction in Reading ("FAIR"), and the Florida Comprehensive Assessment Test ("FCAT"). 

The hearing was to determine whether to uphold a suspension and termination, and as such only required the petitioner to prove each element of the charged offenses by a preponderance of the evidence, as opposed to a more stringent “clear and convincing” evidence standard, which is reserved for cases involving loss of a license or certification. 

In order for a suspension and termination based on performance deficiencies to be valid it "must be primarily based on the performance of students assigned to their classrooms...as appropriate. Pursuant to this section, a school district's performance assessment is not limited to basing unsatisfactory performance of instructional personnel...upon student performance, but may include other criteria approved to assess instructional personnel and school administrators' performance, or any combination of student performance and other approved criteria." (Section 1012.34(3))

The hearing determined that the work "primarily" in the section means that student performance on the annual tests are the first consideration in any teacher evaluations. The Petitioner did not demonstrate that Mr. Guy's students' interim assessments and FAIR performances were a result of his failure to adhere to his performance improvement plans, which is required under the section. 

On the issue of incompetency, the Petitioner also fails to meet the requirements as set forth in Rule 6B-4.009(1). There it states that incompetency is "an inability or lack of fitness to discharge the required duty as a result of inefficiency or capacity." It goes on to say that the Commissioner of Education may appoint expert witnesses from the teaching profession in order to determine by a preponderance of the evidence standard, whether or not the Respondent meets the definition of incompetency. Such experts must demonstrate evidence of "repeated failure on the part of the teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived on minimum educational experience..."

The evidence here did not establish such a failure to provide the students with a minimum educational experience. Here, it was determined that although the students' performance on the assessments was low, it was not proved that those scores were linked to the teachers' performance. An equally plausible conclusion under the circumstance could be that their performance was attributable to their being emotionally and behaviorally disabled. Petitioner has failed to provide adequate evidence to suspend and terminate the Respondent's employment. [state DOAH hearing officers’ action—e.g., “Therefore, the suspension/termination was not upheld, and the teacher was reinstated or whatever happened.]

In this case, the Superintendent of the Manatee School District recommended to the school board that teacher Michele Gabriele be suspended for 15 days without pay and that her employment contract be returned to an annual contract. The Administrative Complaint filed by the superintendent claimed that Gabriele engaged in gross insubordination and misconduct when she:

1) Failed to make reasonable efforts to protect students from conditions harmful to learning and/or harmful to the student's mental and/or physical health and/or safety;

2) Failed to ensure that students were not intentionally exposed to unnecessary embarrassment or disparagement; and/or

3) Exhibited gross insubordination or willful neglect of duties through the intentional refusal to obey a direct order, reasonable in nature, and given by a person in authority.

These allegations were filed after Gabriele asked a teacher's aide "Can I kill a kid today?" Gabriele also called a femal student to the front of the classroom where she yelled at her in front of the other students and a parent.

The administrative Law Judge found that even if said in jest, the statement "Can I kill a kid today?" is sufficient (when combined with other supporting circumstances) to warrant the 15 days of suspension without pay, and a return to an annual contract.