MEMBER VICTORY: Richard Selby gets 6th Circuit to reverse summary judgment on FMLA retaliation claim

Brian East - 09:57am Oct 18, 2008

Congratulations to Richard Selby of Painesville, OH, for his victory on the FMLA retaliation claim in Daugherty v. Sajar Plastics, Inc., ___ F.3d ___, 2008 WL 4587204 (6th Cir. Oct. 16, 2008), http://caselaw.lp.findlaw.com/data2/circs/6th/064608p.pdf.

Here are some excerpts:

"[W]e conclude that the district court erred in utilizing the indirect evidence approach where there exists direct evidence of discrimination. ... [Plaintiff contends] that Alexander threatened him that if he took his final FMLA leave, he would not be allowed to return to work ... [and] that this threat was borne out when, in fact, he was never allowed to return after the leave of absence. ... Clearly, this unambiguous comment, which we must take as true at the summary judgment stage, constitutes direct evidence that Daugherty's termination was motivated by unlawful, discriminatory animus. Alexander was Daugherty's immediate supervisor and a decision maker at Sajar. A fact finder would not be required to draw any inferences to determine that Alexander retaliated against Daugherty when Alexander explicitly threatened such retaliation and the threat-that Daugherty would not have a job waiting for him when he returned from leave-was realized."

"Because Daugherty has produced direct evidence of improper motive, the burden shifts to Sajar to prove by a preponderance of the evidence that it would have made the same decision to discharge Daugherty absent the impermissible motivation. Having reviewed the evidence, we conclude that the question whether Sajar has met this burden is, under the circumstances, for the trier of fact to decide. Although Sajar has proffered evidence that supports its argument that 'it was Plaintiff's stubborn refusal to provide legitimate medical confirmation of the reduction in his medications, not any discriminatory action by Sajar ... that prevented him from returning [to work],' a genuine issue of material fact exists regarding whether Sajar used the requirement that Daugherty undergo a physical examination by Dr. Altemus, and his resultant medical conclusions, as a subterfuge for Daugherty's retaliatory discharge."

Finally, note that although the court affirmed summary judgment on the ADA claims, this part of the case will be MUCH easier when the "new" ADA becomes effective.

Brian