Sports Analogy Can Have Multiple Meanings
In sports, a coach will sometimes tell a player to just “walk it off” or “push through” the pain when a minor injury happens in a game or in practice. One Florida insurance company found out that the world of sports and the world of employment are not the same. When an employee’s boss said “just push through it” to an employee having health problems, the stakes became higher. A jury may have to decide what the boss meant when he made that sports comment to a sales associate.
Dizzy, Weak and Flu-Like Symptoms
In this case, a sales associate who was having trouble meeting his sales goals came down with flu-like symptoms that made him dizzy, weak and almost to the point of “passing out.” His boss told him to go to the doctor, which he did. He came back with a diagnosis of Epstein-Barr virus and was told by the health care provider to remain off work for a month. According to the sales associate, his boss said to take a couple of weeks off and then come back to work because he couldn’t afford to take off the entire month or he would lose his job. He was also told that if his symptoms came back he should “just push through it.” The boss denied trying to discourage the sales associate by using that comment. Rather, the boss had been having a long-standing series of conversations with the sales associate about his production, and the “push through it” comment was made in that context and not in relation to his health problems. His boss explained that the sales associate was a former college football player, and the comment was made in the context of a coach encouraging a player to push through adversity, be aggressive as a sales person and not to sit on the bench. The sales associate eventually did return after two weeks off with a full release from his health care provider. He had even been granted FMLA leave for the entire month, but he came back after only two weeks off.
Reduction in Force and the Sales Associate Is Terminated
Soon after his return, the sales associate was informed that he was being terminated as a result of a reduction in force. Assuming that his health condition and age had everything to do with that decision, the sales associate ended up suing for violations of his rights under the Americans with Disabilities Act (“ADA”), the FMLA and the Age Discrimination Act. On the employer’s motion for summary judgment, the court ruled in favor of the insurance company because it was able to demonstrate that the sales person wasn’t meeting sales goals, that its reduction in force policy was uniformly applied to him and that there was no evidence of pretext. So the ADA claims of discrimination, retaliation and failure to accommodate were dismissed along with the age discrimination claim and the FMLA claim of denial of benefits. But one claim remained and will be decided by a jury.
Jury to Decide if “Push Through It” Comment Discouraged Taking FMLA Leave
Despite the dismissal of all but one of the claims, the interference with FMLA rights claim survived. The court found that because his FMLA leave request for a month off had actually been granted, he had no claim for denial of leave. But, because of the dispute over what the boss said and what the boss meant when he said “push through it,” a reasonable jury could interpret the remarks as discouraging the sales associate from taking the full amount of FMLA leave that had been granted. The jury will now decide if the comments made by the boss unlawfully interfered with the sales associate’s FMLA rights.
Lessons for Employers
Random comments made by supervisors or management officials can be interpreted in ways that were never intended. In this case, the boss’s intention will be reviewed by a jury. It may be that they will find there was unlawful interference, but in this case, it’s not clear what the sales associate might be able to recover since he was released to come back to work, was paid for that time and was subjected to the reduction in force for legitimate non-discriminatory reasons. Nevertheless, employers should be aware that comments that could be seen as discouraging the use of FMLA leave can lead to jury trials.
So employers, be wise and avoid making comments like:
- “We really need you to work.”
- “It would be best if you didn’t take off again.”
- “This could put your job on the line.”
- “This will have a negative impact on your goals.”
- “It’s not fair to the others for you to take off so much time.”
- “Can’t you just push through it?”
Reference: Brown v. Lassiter-Ware, Inc., (D.C.M.D.Fla., 6:11-cv-01074-CEH-DAB August 16, 2013)
If you have any questions, please contact Steve Lyman at slyman@wp.hallrender.com or your regular Hall Render attorney.
