Yesterday the 6th Circuit decided Bryson v. Regis, a significant FMLA decision that could have far-reaching implications for employers' administration of FMLA leave programs and employees' job restoration rights.
Karen Bryson worked in a Lexington, Kentucky, Supercuts for 15 years, starting as a stylist and working her way to store manager. As store manager, Bryson reported to area manager Kim Sawyer. In December 2003, after injuring her knee more than year hence, Bryson took an FMLA leave of absence for corrective surgery. Deposition testimony revealed that Sawyer was very upset with Bryson's leave, referred to her in management meetings as a "crippled ass," and told co-workers that she would make sure Bryson did not have a job to return to after her leave.
Bryson was scheduled to return on March 10, 2004, at the end of her 12 week entitlement. On March 8, Bryson left Sawyer a voice mail message to let her know that she could not return to full status on March 10. When Sawyer never returned the call, Bryson next contacted one of Sawyer's contemporaries, Julie Wilson. Bryson told Wilson that she would not be able to stand for 10 hours a day, but that she could work a full day albeit with some standing and some sitting. Also on March 8, Bryson's doctor completed Supercut's "Release/Intent to Return to Work" form. On that form, Bryson checked the box that indicated that she could not at that time perform all of the essential functions of her position and was requesting assistance with her temporary restriction of seated work only. Bryson mailed the form to Supercuts on March 8, but Supercuts did not receive it until March 15.
Meanwhile, on March 10, when Bryson was no call/no show, Supercuts terminated her employment via a letter authored by Supercut's corporate FMLA Administrator, which stated: "It has been brought to my attention that as of today your health care provider has not released you to return to work with or without restrictions. Because you have exhausted your 12 workweek entitlement to job protected leave under the FMLA, we are unable to continue to hold your position."
Bryson sued Supercuts and its parent corporation, Regis Corp., for FMLA retaliation and disability discrimination. The district court granted summary judgment to the employer and dismissed Bryson's lawsuit. The Sixth Circuit, however, in a decision that has potentially far-reaching implications in how employers administer their FMLA leave programs, reversed the dismissal of the FMLA retaliation claim and remanded the case for trial.
The resurrection of Bryson's FMLA claim is troubling. The Court focused on the gap between Supercut's letter of termination and its receipt of Bryson's "Release/Intent to Return to Work" form, coupled with Sawyer's anger over the leave. It found those two factors to be sufficient evidence of pretext to get this case to a jury. It appears that the 6th Circuit was bothered by Sawyer's comments, and saved Bryson's claim even though she could not have been legally entitled to her job on March 10. Indeed, the Court's analysis ignores one crucial undisputed fact -- regardless of anyone's intent, Bryson was simply not able to return to her job on March 10. She was instead requesting reinstatement to a temporary light duty position, but as the 7th Circuit confirmed earlier this month, the FMLA does not provide for light duty. Nevertheless, Bryson v. Regis implies, if not explicitly holds, that employers cannot terminate an AWOL employee at the end of FMLA leave if the employer knows that the employee can return to work in some limited fashion.
This case seems to create new rights under the FMLA that heretofore did not exist. Even though Bryson was not disabled under the ADA, the 6th Circuit seems to require Supercuts to have accommodated her injury either by providing her light duty, otherwise modifying her job functions, or extending her leave beyond the FMLA's 12 weeks. Bryson presents a significant expansion of FMLA rights, and places all similar terminations at risk unless the employee is entirely unable to return in any capacity at the end of the FMLA leave.
The Bryson case is also a good reminder for companies to build examples such as Sawyer's retaliatory comments into management harassment training. While the 6th Circuit seems to have expanded employee job restoration rights under the FMLA, one has to wonder if this case would have come out differently without Sawyer's statements about Bryson's injury and continued employment.