“In the case at bar, Plaintiff suffered injury on August 2, 2010. Shortly thereafter, Defendant was made aware that Plaintiff had suffered an injury to his arm and would be at least temporarily unavailable for work. Plaintiff provided and continued to provide all relevant medical paperwork to his employer. Plaintiff further informed Defendant that he
Plaintiff’s deposition testimony that a review of time records would reflect underreporting of time for FLSA claim creates a fact issue.
By Colin W. Walsh on
Posted in FMLA violations
“In addition to actually informing Mr. Perkins that he was working, but under-reporting his time, Plaintiff testified that a review of his time records would reflect that he was recording 15 minutes of travel time for a drive … of over 105 miles.”
Arnett v. Sears, Roebuck and Co., 2013 WL 3324070 at *2…
The fact that an employer returned an employee to work after illness does not alone defeat a plaintiff’s claim.
By JCOHEN on
Posted in FMLA violations
“Further, the question is not what Greystar thought when it returned McMann to work, but what it (and its managers) believed when, three months later, they forced McMann to resign.”
McMann v. Greystar Management Services, LP, CA No. 1:12-CV-909, 2013 WL 6243847 at *5 (W.D. Tex. Dec. 2, 2013) (Austin, J.).
Conflicting evidence regarding whether supervisor put employee on paid or unpaid leave creates a fact issue over whether ultimate employment action happened.
By Colin W. Walsh on
Posted in FMLA violations
“Considering the evidence in the light most favorable to Plaintiff, she initially chose to leave LHS after Anderson gave her an ultimatum to either follow her directions or clock out, and upon complaining to Ross, he told her not to return to work until he instructed. While there is conflicting evidence of whether Ross promised…
Evidence that plaintiff would have been reinstated if he did not ask for leave, coupled with failure to investigate allegations from co-workers, and failure to list incident in termination letter, raises fact issues as to motive for termination.
By Colin W. Walsh on
Posted in FMLA violations
“In summation, Chevron has failed to meet its burden and establish as a matter of law that it would have fired Ion despite its retaliatory motive. Chevron’s evidence of Ion’s history of attendance and performance-related deficiencies is insufficient to establish that it would have fired Ion because Chevron chose to address those deficiencies with a…
Failure to list incident in termination letter casts doubt on whether employer truly relied on incident in terminating plaintiff.
By Colin W. Walsh on
Posted in FMLA violations
“The omission of the clinic incident from the termination letter calls into question whether Chevron truly relied on the clinic incident as a reason for terminating Ion. Second, all accounts of the clinic incident offered by Chevron are vague and include no specific or objective description of Ion’s behavior. The accounts do not describe foul…
Employer cannot establish reasonable reliance and good faith in terminating an employee based on co-workers comments if no investigation was conducted.
By Colin W. Walsh on
Posted in FMLA violations
“Chevron’s failure to conduct even the most cursory investigation, confront Ion about Peel’s statements, or seek a second opinion under the FMLA calls into doubt Chevron’s reasonable reliance and good faith on Peel’s statements, and, at the very least, creates a fact issue as to whether it would have terminated Ion despite its retaliatory motive.”…
Supervisor’s email questioning plaintiff’s FMLA leave a day before a co-worker claims the plaintiff would fake a medical condition, followed by plaintiff’s termination a week later raises fact issues as to employer’s motives.
By Colin W. Walsh on
Posted in FMLA violations
“Here, Ion has offered an e-mail written by General Manager Melcher, in which Melcher references Ion’s attempt to exercise his FMLA rights and asks Ion’s supervisor, Ogborn, for ‘options.’ The temporal proximity between when the e-mail was sent, when Peel came forward with Ion’s alleged statements, when Ion was asked to come to the clinic…
Evidence of discipline for prior poor performance and absences does not establish that a subsequent termination would have occurred.
By Colin W. Walsh on
Posted in FMLA violations
“While it is true that Chevron disciplined Ion for his absences and poor performance prior to his application for FMLA leave, it is also true that Chevron’s disciplinary response for these actions had already been determined. Chevron’s claim that it would have fired him based on his absences and poor performance is disingenuous and contradicted…
Email from supervisor about employee playing games with FMLA leave is evidence that FMLA leave was factor in termination.
By Colin W. Walsh on
Posted in FMLA violations
“Drawing all reasonable inferences in favor of Ion, this e-mail serves as evidence that General Manager Chris Melcher was upset that Ion was seeking FMLA-qualified time off. Further, a jury could reasonably conclude that Melcher was attempting to stop Ion from taking FMLA leave or punish him for taking FMLA leave. Therefore, this evidence is…