Summary Judgment Was Error When Jury Could Have Inferred That FMLA Leave Motivated Employer's Termination Decision
SHAFFER v. AMERICAN MEDICAL ASSOCIATION (October 18, 2011)
In late 2008, William Shaffer held the position of Director of Leadership Communications for the American Medical Association. In late October, as a result of budget pressures, the AMA's Chief Marketing Officer asked Michael Lynch, Shaffer's direct supervisor, to recommend a position to eliminate. Lynch recommended the elimination of only one position -- the one held by Peter Friedman. A month later, Shaffer advised Lynch that he had scheduled knee replacement surgery for January of 2009 and would be out of work from 4 to 6 weeks. About a week later, Lynch retracted his earlier recommendation and recommended that Shaffer's position be eliminated rather than Friedman's. The AMA terminated Shaffer's employment in January of 2009. In February, after learning of threatened litigation, the AMA's human resources representative typed up his original notes regarding conversations with Lynch and dated them November 25, 2008. He then destroyed the handwritten notes. At the same time, he instructed Lynch to prepare a memorandum describing his rationale for selecting Shaffer. Lynch prepared the memorandum but dated it November 21, 2008. Shaffer brought suit pursuant to the Family and Medical Leave Act. Judge St. Eve (N.D. Ill.) granted summary judgment to the AMA. Shaffer appeals.
In their opinion, Seventh Circuit Judges Kanne, Williams, and Tinder reversed and remanded. The FMLA prohibits an employer from interfering with an employee's right to take leave and also forbids an employer for retaliating against an employee for taking leave. Although an interference claim and a retaliation claim are similar, a retaliation claim requires proof of discriminatory intent while an interference claim does not. The record here shows that Lynch changed his mind about what position to eliminate between late October and late November of 2008. One event of note that occurred between those two dates is Shaffer's notification that he was taking leave in 2009. The Court concluded that a jury could find that Lynch's change of mind shortly after learning of Shaffer's intent to take leave supported a conclusion that the request for leave and the termination were causally related. The Court also pointed to the facts that the human resources representative backdated his memorandum and destroyed his original notes and that the AMA gave different explanations of its decision over time. Finally, the Court considered whether Lynch’s "November 21, 2008" memo (actually prepared in February of 2009) was protected by the attorney-client privilege. Although the memorandum was backdated and addressed to the human resources representative, the fact is that it was prepared for and only shared with AMA's in-house counsel. The Court concluded that the memorandum met all of the requirements for the privilege to apply and that the district court did not err in excluding it.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select