On Sept. 26, the 5th U.S. Circuit Court of Appeals issued an important pro-employee decision in Ion v. Chevron USA, Inc. The decision impacts not just the underlying FMLA claim but all employment law cases.
Here’s how the 5th Circuit describes what happened. Todd Ion worked as a chemist for Chevron. He sought short-term disability leave as well as FMLA leave, which the company granted. But just a short time earlier, he had been placed on a performance-improvement plan and suspended for five days, prompting an email from a manager: "It looks like Mr. Ion is playing games with us after his suspension. . . . What are our options?"
Shortly thereafter, Ion went to the Chevron medical clinic, where he allegedly was disruptive, prompting a Chevron security guard to intervene and perform a "risk assessment" on him, leading to his being banned from Chevron property.
As they say in the 2 a.m. infomercials, that's not all. One of Ion’s co-workers told management that Ion had said he was going to fake an illness to take FMLA leave. That led to yet another management email that Chevron did not "need this type of criminal behavior."
So, Ion got fired. He received a letter regarding the reasons for his termination. The letter mentioned the co-worker’s report, but it omitted the clinic incident, and it said that Ion had not "returned to work since his suspension.”
Ion filed a FMLA retaliation suit. The district court granted summary judgment for the employer, but the 5th Circuit reversed. Here are four keys points to keep in mind.
- The 5th Circuit said a jury could draw an inference that Ion’s use of FMLA leave played a role in the termination decision, because the termination letter mentioned that Ion had not returned to work since his suspension. Well, he had not — because he was on FMLA leave.
- A jury could conclude that the email about "playing games" and "what are our options" demonstrated animus toward Ion taking protected leave.
- The 5th Circuit rejected the company's reliance on the co-worker statement. The company had argued that established 5th Circuit law allows an employer to make its own business judgments, even if those judgments are mistaken. True, said the court, but the judgment must be reasonable; here, a jury could decide that the judgment wasn't, because the employer never interviewed Ion about the alleged statement.
- While the company claimed that the clinic incident influenced its decision, it didn’t mention that incident in the letter. The court found this suspicious and believed a jury could, as well.
Look, the 5th Circuit has a reputation as being pro-employer. I think this is an incorrect frame. The 5th Circuit reminds me of my high school physics teacher who, on the first day of class, said, “This is going to be a hard class. There will be no extra credit. So, if you're not up for it, withdraw now.” (I did.)
That's pretty much the 5th Circuit's message to plaintiffs: Bring us the goods or go home. One final thought: Yes, there will be employees who connive and cheat, but change that presumption to one of presuming positive intent on the employee's part. Over a lifetime, that's the smarter bet.