Here’s an interesting case where an employer had stacks of documentation on an employee's poor performance, but the employee nonetheless was able to eke out a partial victory.
Let's take a look at Romans v. Michigan Department of Human Services, a 2012 decision from the 6th U.S. Circuit Court of Appeals. The court sketched it out: The plaintiff, an officer at a state-run juvenile detention center, had been written up several times from 2005 through 2008 and was terminated. He sued for race discrimination, and the trial court tossed that claim on summary judgment. The 6th Circuit agreed. After all, the box score, as described by the appeals court, showed the plaintiff was terminated for accumulating six disciplinary write-ups from violating four separate work rules. (Romans later filed a petition for rehearing, which the 6th Court denied.)
But, there was one loose thread: the plaintiff’s Family and Medical Leave Act claim for interference with FMLA rights and retaliation. The plaintiff claimed he told his supervisor that he needed to leave work, saying, “I'm not staying. My mom's dying. I'm leaving.” Turns out she was, and he needed to be at the hospital to confer with his sister in deciding whether to continue his mother on life support. He received a one-day suspension for leaving work.
The trial court tossed this claim, reasoning that, while the FMLA allows a family member "to care for" a family member, it does not provide for all family members to be present "to care for" a family member at the same time.
No dice, according to the 6th Circuit: The regulations do allow for more than one family member, and they provide for FMLA leave "to make arrangements for changes in care. . . ." The appeals court reasoned that the decision between life and death fits within that rule. The 6th Circuit further held that these facts were sufficient to warrant denial of summary judgment on the plaintiff's retaliation claim, as well.
So what is the big deal? One day's pay? No. Here is the appeals court: "[P]laintiff has demonstrated that he was suspended because he left work to go to the hospital, which caused him, at least, to lose pay for that day. This is sufficient to claim he was harmed by the alleged interference and retaliation. Plaintiff also claims that the suspension was later part of the basis on which he was terminated. Defendant claims that Plaintiff would have been fired even without that absence, but that is a factual dispute which goes to Plaintiff's damages, not his ability to survive summary judgment."
Wow. This reasoning strikes me as a Rube Goldberg-type of contraption, but it worked for the plaintiff.
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