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March 17 — A former Culinary Institute of America employee who was fired after taking leave to care for her two ailing sons has triable Family and Medical Leave Act claims against both her employer and the human resources director who instigated her discharge, the U.S. Court of Appeals for the Second Circuit ruled March 17.
Joining three other federal appeals courts, the Second Circuit said an “economic reality” test used under the Fair Labor Standards Act to decide if an individual manager may be deemed an “employer” also applies under the FMLA.
The FMLA provides an “employer” includes “any person” who “acts, directly or indirectly in the interest of an employer” toward an employee. A jury applying an economic reality test could find Human Resources Director Shaynan Garrioch qualified as an FMLA “employer” of fired employee Cathleen Graziadio and therefore may be liable for violating her statutory rights, the court said.
Under the economic reality test, courts consider several “non-exclusive and overlapping” factors. These include if the alleged employer had the power to hire and fire employees; supervised and controlled employee work schedules or conditions of employment; determined the rate and method of payment; and maintained employment records.
The Second Circuit's adoption of this individual employer standard is “a very good precedent” that should benefit all employees and their attorneys, said Nathaniel Charny, the Rhinebeck, N.Y., lawyer who represented Graziadio.
The court also sided with Graziadio on her FMLA interference claim. It's discussion indicates that if an employer is unclear about medical certification requirements or erects roadblocks to an employee's compliance, the employer has a greater burden in defending the FMLA claim, Charny told Bloomberg BNA March 17.
An attorney for the Culinary Institute was unavailable for comment March 17.
In the FMLA context, the courts have said the economic reality test essentially asks if “the putative employer” controlled “in whole or part” the employee's rights under the FMLA.
A federal district court dismissed Graziadio's FMLA claim against Garrioch because it found a Culinary Institute vice president, not the HR director, had “ultimate authority” to terminate employees.
But evidence indicates Garrioch “played an important role” in the decision to fire Graziadio and the vice president conducted no independent investigation of Graziadio's alleged misdeeds, the Second Circuit said. A reasonable jury could conclude the HR director had “sufficient control” over Graziadio's employment to be held individually liable under the FMLA, the court said.
Graziadio also presented evidence the HR director controlled her schedule and conditions of employment, at least regarding Graziadio's return from FMLA leave, the court said. Other supervisors testified the HR department exclusively handled any employee's return to work after FMLA leave, the court said.
No evidence was presented about who set the rates and method of pay, and the record-keeping factor favors finding the HR director wasn't Graziadio's employer, the court said.
“Nevertheless, on the overarching question of whether Garrioch ‘controlled plaintiff's rights under the FMLA,' there seems to be ample evidence to support the conclusion that she did,” Judge Guido Calabresi wrote.
A payroll administrator at the Culinary Institute, Graziadio in June 2012 took about 10 days of leave after Vincent, her 17-year-old son, was hospitalized with previously undiagnosed diabetes. She sought to have the absence classified as FMLA leave and on June 27 submitted medical certification that supported her need for leave to care for Vincent.
That same day, however, her 12-year-old son, T.J., broke his leg and Graziadio immediately took leave to care for him.
Graziadio subsequently told her immediate supervisor that she would need temporarily to work a reduced, three-day schedule but could return to work July 12 if she got approval for the reduced schedule. Graziadio also asked if she needed to submit any more medical documentation.
The supervisor referred Graziadio's requests to Garrioch, the HR director. Graziadio and the HR director began a six-week dance in which Graziadio repeatedly stated her desire to return to work and sought clarification on what medical documentation was needed to classify her leaves both for Vincent and T.J. as FMLA leave.
Garrioch told Graziadio her documentation was insufficient and that her leave wasn't FMLA-covered. But the HR director never clarified how it was deficient, and she refused to let Graziadio return before a face-to-face meeting. That meeting never occurred. Graziadio submitted updated medical documentation to which Garrioch didn't respond, and she ultimately was fired for job abandonment in September 2012.
Graziadio sued under the FMLA and the Americans with Disabilities Act, alleging bias because of her association with her disabled sons. The district court granted a motion by the Culinary Institute and Garrioch for summary judgment.
The district court said Graziadio couldn't establish the Culinary Institute had denied her leave to care for Vincent or that she had provided an “adequate medical certification” regarding the need for leave regarding T.J.'s care.
The Second Circuit, however, said that although Graziadio initially was granted leave to care for Vincent, she raised material factual questions whether she took intermittent leave subsequent to her June 18 return and whether any such intermittent leave was approved.
“Graziadio may be able to prove that she was denied leave to which she was entitled and thus to prevail on her claim of FMLA interference” regarding Vincent, the court said.
Graziadio also offered evidence the Culinary Institute denied or withheld approval of the leave, the court said. Garrioch indicated the employer wouldn't approve additional FMLA leave to care for Vincent, and she didn't respond after Graziadio submitted new medical certification regarding Vincent, the court said.
Evidence indicates Graziadio made good-faith efforts to comply with the FMLA's medical documentation requirements but was stymied by the HR director's vague responses about what exactly was required, the court said.
Graziadio repeatedly expressed her desire to return to work, but the HR director insisted no return was possible until after Graziadio met with her. A jury reasonably could find it was the HR director who prevented that meeting from occurring, the court said.
Graziadio timely replied to the Culinary Institute's request for updated medical certification regarding Vincent and documented her need for ongoing, intermittent leave, the court said.
“Accordingly, we find that Graziadio has put forward evidence that she was entitled to take leave, that she attempted to take leave, and [the Culinary Institute] refused to approve that leave,” the court said. “Graziadio's FMLA interference claims with respect to Vincent therefore survive summary judgment.”
The district court dismissed Graziadio's FMLA interference claim regarding her younger son, because it said she failed to submit a valid medical certification.
“We find, however, that a jury could conclude that Graziadio attempted in good faith to comply with [the Culinary Institute's] certification requests and that defendants' conduct excused any residual failure in compliance,” Calabresi wrote.
The ADA claim based on alleged associational discrimination was properly dismissed, the Second Circuit said.
Such claims arise if an employee shows the employer took adverse action because it feared the employee would be “distracted” and inattentive at work because of her family member's disability.
“Graziadio has not presented evidence that she was fired because her employer suspected distraction or concern for Vincent would cause her to perform her work inadequately,” the court said. “Rather, she has presented evidence that she was terminated because her employer felt that she had taken too much leave from work to care for her sons.”
Graziadio hasn't shown her employer feared that she would be “inattentive at work,” but rather that it feared she wouldn't be at work at all, the court said.
“Accordingly, we find that Graziadio cannot sustain an ADA claim for associational discrimination,” the court said.
Judges Gerard E. Lynch and Raymond J. Lohier joined in the decision.
Jackson Lewis PC represented the Culinary Institute of America.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/CATHLEEN_GRAZIADIO_PlaintiffAppellant__v__CULINARY_INSTITUTE_OF_A.
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