could be that the purpose of your life is only to serve as a warning to others.
In any event, that must be what the American Medical
Association is thinking. The organization took it on the chin this week in a case
involving the Family and Medical Leave Act.
The case is well worth a post-mortem because of what it
teaches employers about "causation" in retaliation and protected
concerted activity cases.
Names have been changed to protect the allegedly* guilty.
*Even though the AMA lost a battle with this
decision, it has not lost the war. The court found that summary judgment should
not have been granted, but that means that the case will be tried before a
jury. A jury might side with the plaintiff, but it might also side with the
Here's what happened:
The AMA, like just about every other employer, suffered
from the economic downturn in 2008, and a manager -- we'll call him Dr. Pepper
-- was told to reduce costs. Eventually it was determined that he was going to
have to eliminate one position.
(One more disclaimer before I go on. Despite
my fictional "doctor" names, none of the individuals actually
involved in this case were physicians, as far as I can tell.)
Dr. Pepper chose an individual to eliminate -- we'll call
him Dr. Seuss -- and sent an email to his boss informing her that he had chosen
Seuss, and the rationale for selecting him. The gist of the rationale was that
most of Seuss's work was going away anyway, so it made the most sense to
eliminate his position.
Dr. Pepper's boss -- we'll call her Dr. Scholl -- sent
him a reply asking whether the plaintiff, Dr. Dre, should have been
eliminated along with Seuss. Pepper replied no, because he did not think it
would be wise to eliminate any more positions than absolutely necessary. Scholl
apparently was cool with this answer. This all happened in late October 2008.
So, we get to November 20 at a conference. Dr. Dre was
there with Dr. Pepper. Dre told Pepper that he was going to have surgery on his
knee in January, would be out of work for a few weeks, and was going to apply
for short-term disability.
I hope you've stayed with me, because now it gets
Ten days after this conversation, on Sunday night of
Thanksgiving weekend, Dr. Pepper sent an email to Dr. Scholl, apologizing
for his "11th hour" change in decision, and telling her that
he now wanted to eliminate Dr. Dre instead of Dr. Seuss. Among other things,
Pepper said that they could more easily weather the loss of Dre because
they were preparing for him to go out on disability anyway.
Poor Dr. Dre was terminated in January, and
he hired a lawyer, and his lawyer sent a nasty letter to the AMA in February.
The AMA's in-house attorney informed the organization's HR representative about
the threatened litigation. We'll call the HR rep Dr. Bombay. (Nowadays,
should that be Dr. Mumbai?)
It turns out that Dr. Bombay and Dr. Pepper had discussed
the decision to terminate Dr. Dre back in November and that Bombay had taken
handwritten notes. Upon learning of the threatened litigation the following
February, Bombay typed up his notes and shredded his original handwritten
notes, and he dated the typed notes "November 25, 2008," even
though it was now February 2009.
wait! There's more!
It turned out that Dr. Pepper's calendar didn't show a
meeting with Dr. Bombay on November 25, and Pepper didn't remember having had
one. Even worse, he testified that he didn't decide to eliminate Dr. Dre until
after that date. All this made Bombay's backdating look even more dishonest.
In May 2009, the AMA eliminated about 100 more employees,
including Dr. Seuss, the person Dr. Pepper had originally planned to eliminate.
Apparently this was enough for a district court to grant summary judgment to
the AMA. (I know! I'm not sure how that happened, either.)
But the U.S. Court of Appeals for the Seventh Circuit,
which hears appeals from federal courts in Illinois, Indiana, and Wisconsin,
reversed, which means that Dr. Dre will be allowed to take his FMLA
"interference" and retaliation claims* to trial.
*FMLA "interference" is simply a
denial of FMLA leave to someone who is entitled to it, or doing something to
discourage the individual from taking FMLA leave. It does not require a bad
motive on the part of the employer and can even be based on a mistake or
misunderstanding. In the case of FMLA retaliation, the employer
"punishes" the employee for requesting or taking FMLA leave. Proof of
the employer's unlawful motive is required for a retaliation claim.
So, let's make the usual
Y-shaped incision and see what lessons can we learn from our
"autopsy" of this case.
1. Timing is really, really important. On
October 28, Dr. Pepper told his boss that Seuss should be eliminated, and he
gave a good reason for the selection. He also told her that he thought it would
be unwise to eliminate anyone else, and specifically Dre. On November 20, Dre
informed Pepper that he would need to take FMLA leave in January. Within 10
days, Pepper reversed his RIF decision and recommended that Dre be eliminated
instead of Seuss. Whatever Dr. Pepper's actual motive, this timing looks quite
damning, doesn't it? The Seventh Circuit thought so, too.
2. Mentioning the FMLA leave in the
poorly-timed email was not cool. In Dr. Pepper's
"11th-hour" email, he said that the department could adjust easily to
Dr. Dre's elimination because they were already preparing for his medical
leave. Yes, I know there could be an innocent explanation for this: Pepper
wasn't giving that as his motivation, he was simply giving his opinion about
the effect of the decision. But this statement, especially when considered
along with everything else, helps to make it look like the FMLA leave request
was the reason for the selection.
3. Backdating documents is really not cool.
Here's what I always tell clients: It's fine to document an event after the
fact, even long after the fact, and I strongly recommend it if you didn't
document at the time. But never, ever, ever, ever, ever, ever, ever in a million
zillion years backdate it -- unless you are sure that the backdating is
"transparent" (for example, drawing a line through the current date
so that the original date is still visible, or saying something like
"Created 10/22/11 based on event that occurred 6/1/11."). Any other
kind of backdating looks dishonest and, as the Seventh Circuit noted, is more
evidence that the employer may have had an unlawful motive and was trying to
cover its tracks.
4. Destroying handwritten notes upon learning
of threatened litigation (aka "spoliation") is the uncoolest of all. If
you're not expecting litigation and don't have reason to expect it, then you
can create a "draft" document and destroy the draft after creating
the "final" version. But once you either become aware of litigation
or have reason to expect it, your right to do this is gone. You must
save all of your relevant documentation. Dr. Bombay, the HR
representative who destroyed his handwritten notes after learning of the threat
of a lawsuit, committed "spoliation," whether he realized it was
wrong or not. As a result, when the case goes to trial, the judge may instruct
the jury that the notes would have been favorable to Dr. Dre's case.
5. To err is human: be willing to cut your
losses if you messed up, or if it will look like you messed up even if you
didn't. In this case, it appears that Dr. Dre would have
survived at the AMA only about 5 more months if Pepper had stuck with his
original plan to eliminate Seuss in January. The undisputed evidence showed that
the AMA had a massive reduction in May, and it probably would have included Dre
if he'd still been around. Damages under the FMLA are limited to so-called
"make-whole" relief (essentially, back pay, back benefits, costs and
attorneys' fees, possibly doubled in the case of a willful violation). Even
assuming the AMA might have been on the hook for a "willful"
violation, it probably had a strong argument that it would not have owed much
more than 10 months' pay to Dre, plus his costs and fees. Given that, it might
have made economic sense for the AMA to have settled the case in mediation. (Please
note that mediations are confidential, so it is very possible that the AMA
tried to do just that.)
I was tempted to end this post with a rap about Dr. Dre,
the AMA, the FMLA, the month of May, Dr. Bombay, and "anyway." Then I
thought better of it. You're welcome.
Visit the Employment and
Labor Law Insider for additional insights from Robin Shea, a partner with the national labor and
employment law firm Constangy, Brooks & Smith, LLP.
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