by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
& Gail Cohen, Esq. - Assistant General Counsel,
September 20, 2017
Employers, when was the last time you asked the question “What could an FMLA suit potentially cost?” For Verizon, the answer was “a lot,” including a judgement that awarded $800,000+ to a former employee as well as:
Substantial attorneys’ fees and costs (almost always more than the fees incurred by the plaintiff)
Business disruption and loss of productivity by its employees who had to prepare and serve as witnesses, locate and review documents and assist with other inevitable litigation-related tasks
Here’s the entire story and your opportunity to learn an important lesson.
Facts. Suzette Walker worked for Verizon for over 36 years, starting as an intern and working her way up to a position paying over $93,000. Walker had a history of good reviews with the exception of 2013, when she was dinged for being absent from work. Her absence was attributed to an FMLA leave taken to recover from a shoulder injury. In 2015, that review cost Walker her job.
Verizon’s employee evaluation system had 4 ranking levels: Leading (the top score and rarely given); Performing (employee met and periodically exceeded expectations); Developing (employee had not met objectives and requirements, and improvement was needed) and New (employee had not worked long enough to be evaluated).
In 2013, Walker was assigned to a new position but then had to take FMLA leave for shoulder surgery and recovery. Walker’s manager, Brian Magee, wrote in her mid-year evaluation:
Suzette [Walker] was moved to Conduit/Highway in the first half of the year due to existing knowledge of conduit and the City Permit process. GPIS review has been a positive transition, but conduit design has been hard to transition. Suzette has missed time due to an injury, which has made the transition difficult. The conduit area is still setup for the former Conduit Engineer and I have received complaints about the conduit mailbox being full. We are not where the Conduit/Highway Team needs to be at this time. [Emphasis added.]
This was written when Walker had been out on FMLA leave for nearly 2-1/2 months and back to work at her new position part time for only about 3 weeks. In the 2013 year end performance review, which built upon the mid-year review, Magee gave Walker a “Developing” rating, although she had always received a “Performing” score in past years (and was also rated as “Performing” in 2014).
The layoff. In 2015 Verizon instructed Magee and another manager to eliminate one person from their two teams as part of a reduction in force. The managers were trained on a “rate and rank” process and instructed to use that process to determine who to terminate, looking back at each employee’s performance over the last two years. Instead, they spoke by telephone and agreed to select Walker for layoff. Magee then contrived rate and rank scores that justified the decision. Walker ended up on the bottom of the rankings, in part because of her “Developing” score in 2013 which counted as only 1 point in the rate and rank process. A “Performing” score counted as 3 points. Walker received a total score of 13 and would have tied with the other lowest employee, who received a 15, but for the hit on her 2013 evaluation. Moreover, the other employee had been on a recent performance improvement plan that, according to the rate and rank process, should have cost him 3 points. These points were not deducted from his overall rate and rank score.
In support of his bogus rate and rank score, Magee wrote that Walker “received a D[eveloping] rating in 2013 as she hadn’t learned the core engineering role as quickly as expected . . . ”
The verdict. After a five-day trial, the jury returned its verdict. Although some of Walker’s claims were dismissed, the jury found that Verizon had committed age discrimination against Walker and had retaliated against her for taking FMLA leave in 2013. The jury awarded $188,000 in damages in Walker’s favor for back pay (and $10,000 on that age discrimination claim). We’ll get to the rest of that $800,000 judgment in a bit.
The ruling. The court affirmed the jury verdict and added other damages that are within the court’s province (see table below). In its opinion affirming the jury verdict, the court recognized that Magee didn’t really conduct a rate and rank to reach his decision to select Walker for termination. However, in the fake 2015 rate and rank form, Magee wrote that Walker was slow to learn her job responsibilities in 2013. The judge stated that a jury could reasonably infer from this that Magee decided to fire Walker in 2015 because she hadn’t learned quickly enough in 2013 due to her FMLA time off. The judge also stated the jury could believe that Magee’s comments on the rate and rank form were evidence of the reasons he had in mind in selecting Walker for termination.
Insights from the winning trial attorney. Curious about this case, your intrepid reporter spoke with Christine E. Burke (Karpf Karpf & Cerutti), the attorney who represented Walker. One fact of particular interest to me was that Verizon’s retaliation (the layoff) took place two years after Walker’s FMLA leave. Usually, the protected FMLA leave and the act of retaliation occur much closer together, making it easier to infer the retaliation. Ms. Burke explained that because the rate and rank only required a 2-year performance look back, the 2013 “Developing” evaluation took on greater significance than her other 30+ years of good performance – thus allowing Magee to jerry-rig the rate and rank to achieve his desired outcome.
Ms. Burke also explained that the jury was swayed by the lack of fairness in Magee’s supposed rate and rank. Not only did Magee’s 2013 evaluation work to Walker’s detriment, but Magee did not follow the company’s rules. His failure to charge the other employee with a 3-point deduction for the PIP probably just stunk to the jury.
Finally, and perhaps most important, Ms. Burke acknowledged that the case would probably not have made it to a jury – meaning never filed, or dismissed by the court pre-trial – but for that comment in Walker’s 2013 mid-year evaluation: “Suzette has missed time due to an injury, which has made the transition difficult.”
How much? So how big was the judgment in favor of Suzette Walker? Here is rundown of the types damages that can be awarded in an FMLA case and the amounts awarded to Walker:
|FMLA DAMAGES ITEM||DESCRIPTION||AMOUNT|
|Back pay||Common award in termination case – lost wages up to date of judgment||$188,000|
|Front pay||Awarded if employee has not yet become re-employed at time of judgment – lost wages looking forward||$256,000|
|Pre-judgment interest – on back pay only||Always awarded if back pay is awarded, at the “prevailing rate”||$6,001|
|Liquidated damages**||Similar to punitive damages – equal to amount of back pay plus pre-judgment interest (see **below)||$194,001|
|Plaintiff’s attorney’s fees||Employer pays if employee wins||$153,356|
|Plaintiff’s costs||Employer pays if employee wins||$6,213|
|TOTAL FMLA AWARD TO PLAINTIFF||$ 803,571|
|Employer’s estimated attorney’s fees and costs|
|Employer always pays (and is usually larger than employee’s attorney’s fees)||$ 160,000 est.|
|TOTAL COSTS TO VERIZON|
** Liquidated damages are routinely awarded in FMLA cases. The employer can avoid liquidated damages only if it proves that it had a good faith belief that its act or omission was not a violation of the FMLA. An explanation for the employer’s actions is not enough; the employer must also prove it took affirmative steps to ascertain the requirements of and comply with the FMLA in the particular situation. As the Walker court ruled in awarding liquidated damages against Verizon:
The court must award liquidated damages unless the employer proves to the satisfaction of the court that the act or omission which violated the FMLA was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of” the FMLA.
This, Verizon was unable to do.
Pings for Employers
We sound like a broken record, but you must TRAIN YOUR SUPERVISORS AND MANAGERS on employee rights and employer obligations under the FMLA. Without that ill-advised comment in Suzette Walker’s 2013 mid-year review, Verizon might have succeeded in defeating her FMLA claim.
Training might also have enabled Verizon to avoid the liquidated damages by being able to show a good faith effort to educate its supervisors on employee rights and employer obligations under the FMLA.
In all your processes, treat employees who have taken or are taking FMLA leave consistently with employees who have not.
Follow your established procedures when applying discipline, assessing layoff, or otherwise affecting the employment of an employee who has taken or is taking FMLA leave.
Walker v. Verizon Pennsylvania, LLC (E.D.Pa. August 25, 2017)