by Lana L. Rupprecht, Esq. - AVP Product Compliance
January 23, 2024
We are just a few weeks into 2024, and the Eastern District of Pennsylvania has already issued an interesting leave-related decision containing important reminders for employers.
The case is Labrice v. City of Philadelphia, Civil Action No. 19-4377 (Jan. 16, 2024, E.D. Penn).
On March 23, 2018, Michael Labrice was promoted to Police Captain and assigned to the Internal Affairs Bureau for the Philadelphia Police Department. Like all newly-promoted employees there, he was subject to a 6-month probationary period where he would receive 2-month and 5-month performance reviews.
During Labrice's 2-month performance review, his direct supervisor marked him as "satisfactory" in all areas. The supervisor informed Labrice that he was qualified for the newly promoted position but identified several areas for improvement, giving Labrice a separate "counseling form."
On August 3, 2018, a couple of weeks before his scheduled 5-month performance review, Labrice's direct supervisor gave him another "counseling memo" identifying instances where Labrice was unprepared for meetings and failed to keep the supervisor updated on the status of investigations.
Just days later, while on duty, Labrice hit his head and neck on a concrete pillar. He was transported to the hospital and diagnosed with a traumatic brain injury. Labrice did not return to work for several months.
While Labrice was out of work recovering from his injuries, his employer changed his status to "Injured On Duty" (IOD) and put his probationary period on hold. Despite Labrice's IOD status, his supervisor proceeded with his 5-month performance review, marking Labrice's performance as "unsatisfactory" and recommending that Labrice be rejected from his probationary period and denied permanent status as Police Captain.
When Labrice returned to work on April 15, 2019, his employer reassigned him to a different area, Audits and Investigations, but maintained his Captain status. One month later, Labrice received a one-page form notifying him that he was rejected from his probationary period as Captain and restored to his prior rank as Lieutenant. The form Labrice received stated:
You were appointed to the position of Police Captain on March 23, 2018. You are on probation until 5/31/2019. You were in IOD status from 8/17/2018-4/14/2019. Your probation was extended which you were notified of on 8/27/2018.
Labrice's employer later gave him supplemental pages listing additional reasons (other than his IOD status) for his demotion. These additional reasons were all based upon deficiencies occurring before he went out on leave.
Labrice sued his employer and his direct supervisors under the Americans with Disabilities Act (ADA) (failure to accommodate, discrimination and retaliation) and the Family and Medical Leave Act (FMLA) (interference, discrimination and retaliation) and other state claims.
The court dismissed the ADA accommodation claim because the only evidence of an accommodation that Labrice requested was leave, which he received. The rest of the opinion, however, was not as employer friendly.
The court held that Labrice's ADA discrimination and retaliation claims could proceed to trial. The court pointed out that the demotion decision for Labrice was made while he was on leave and only accounted for pre-leave activity. Also, the court noted that prior to going out on leave, Labrice's performance was "satisfactory" with "no formal reprimands that would indicate that he was failing to meet expectations." On the ADA discrimination claim, the court stated: "The negative five-month performance review and demotion paperwork that were prepared during Labrice's medical leave create an inference that Labrice's demotion was on account of his disability."
As to the FMLA claims, the court stated that the discrimination and retaliation claims could proceed to trial for the same reasons as the ADA claims, noting that Labrice invoked an FMLA right by asking to take unpaid leave to recover from his temporary disability. On the FMLA interference claim, the court found it was disputed as to when his rights were violated (before or after he returned from leave) and noted that even though Labrice was restored to a Captain position initially, he was detailed to another department. The court recognized that the United States Supreme Court is considering as to whether such a transfer, if discriminatory, is an actional adverse employment action. "Because Labrice's FMLA interference claim could proceed either on this theory or on the theory that his demotion took place while he was on leave, I will deny Summary Judgment [on the interference claim]."
What does this decision mean for employers? It sets forth several important reminders.
- If you are not happy with an employee's performance, state so clearly at the time it happens. Here, the supervisor did not give Labrice any formal reprimands pre-injury and officially marked his performance as satisfactory. The court did not give much credence to the informal counseling forms provided to Labrice.
- Do not attribute performance problems or an employment decision to the fact that the employee is out on medical leave.
- Train your supervisors to recognize when FMLA should be triggered. As the court in this case noticed, Labrice "did not need to invoke the FMLA in order to take medical leave."
- Get your employment lawyer involved before making any sort of demotion or termination decision, especially when the subject employee is or has been out on leave.
Reliance Matrix Can Help!
Reliance Matrix offers employers federal and state leave administration and accommodation services, including accommodations under the ADA, the FMLA and other laws. For more information, contact your Reliance Matrix account manager or send us a message to [email protected].