Labor & Employment – No FMLA Claim for Contractor Layoff

Waag v. Sotera Defense Solutions Inc. (Lawyers Weekly No. 001-114-17, 26 pp.) (Traxler, J.) No. 15-2521, May 16, 2017; USDC at Alexandria, Va. (Ellis, J.) 4th Cir.

Holding: A defense contractor wins summary judgment in this FMLA suit filed by a former senior director who took medical leave for severe injuries to his hand from falling off his roof; the 4th Circuit says plaintiff was restored to an equivalent position upon his return to work, and he was laid off in 2013 due to lack of business after the sequestration, not to interfere with his FMLA rights.

Interference Claim

Plaintiff first argues that defendant Sotera interfered with his rights under the Family and Medical Leave Act by failing to restore him after he returned from leave to his former position with the company even though the position was still available. The FMLA does not require an employer to restore an employee returning from leave to his previous position no matter what.

The text has a plain and unambiguous meaning – that an employee who takes FMLA leave has the right to be restored either to his original position or to an equivalent position. The restoration provision does not indicate a preference for restoring covered employees to their pre-leave positions over “equivalent” positions, and it does not require an employer to hold open an employee’s original position while that employee is on leave. We also reject plaintiff’s reliance on 29 C.F.R. § 825.214 to support his reading of 29 U.S.C. § 2614(a)(1). The language of the regulation is perfectly consistent with the statute, clarifying that an employee returning from FMLA leave may be restored to an equivalent position even if the employee has been replaced in his original position.

The district court correctly rejected plaintiff’s legal contention that Sotera interfered with his FMLA rights by not restoring him to his pre-leave position.

The district court also did not err in concluding there was no genuine issue of material fact regarding whether the tangible aspects of plaintiff’s position to which he was restored was the equivalent of his former position.

Plaintiff’s salary for both jobs was identical – $189,000 – and plaintiff was eligible for bonuses in both positions. The employment benefits were exactly the same for both positions. The “terms and conditions of employment” were equivalent for both jobs. Plaintiff’s worksite was the same before and after leave. His title – Senior Director – stayed the same in his new position and he reported to a Sotera vice president – just as he had before taking leave. His duties and responsibilities were “substantially similar” to those attached to his original positions, and focused on business development.

In our view, no reasonable factfinder could conclude that Sotera failed to place plaintiff in an “equivalent position” or that the differences between the two jobs were more than merely de minimis.

Industry Layoffs

Plaintiff contends summary judgment was inappropriate because a triable issue of fact exists as to whether his post-leave position was a sham, essentially scheduled to be eliminated after a few weeks. He points to no actual evidence in the record that would permit a jury to conclude – without speculating – that the new job was a sham. Plaintiff’s business unit was working toward winning a contract worth “$70 or $80 million” at the time. Although Sotera’s bid ultimately was unsuccessful, it was a real bid. A vice president also lost his job after the bid failed.

Plaintiff also argues he established a prima facie case of FMLA retaliation by showing close temporal proximity between the protected activity at issue – medical leave – and his employer’s adverse action – termination from employment less than six weeks after plaintiff returned from leave.

Even assuming plaintiff established a prima facie case of retaliation, he still did not rebut Sotera’s explanation for his termination. Sotera offered evidence that government sequestration in October 2012 had a disastrous effect on the defense contracting industry. In February 2013, Sotera determined drastic cuts in spending were needed, and it began with plaintiff’s division, which had high overhead and was underperforming in terms of revenue. Layoffs began in February 2013 and continued throughout 2014. The company focused initially on employees who were not performing important strategic work that could be billed directly to the government, and plaintiff was among the first employees included in the layoffs.

Summary judgment for employer is affirmed.