A “Real Deadline” or a “Hortatory Deadline?” FMLA Retaliation in Lindsey v. Bio-Medical Applications

Most discussion around the Family and Medical Leave Act, or FMLA, centers around the right to leave.  The FMLA states that an eligible employee has the right to take up to twelve weeks of unpaid leave as a result of childbirth, a “serious health condition,” or overnight hospitalization.  But what if a company allows a worker to take leave, then punishes her on return?  The FMLA forbids that too.  It’s called a retaliation claim, and Section 2615(a)(2) of the FMLA states that “it shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this title.”

That’s exactly what happened to Leisha Lindsey, the plaintiff in Lindsey v. Bio-Medical Applications of La., Inc., 9 F.4th 317 (2021). She was the Clinic Manager for Bio-Medical Applications of Louisiana (BMA), at its Bunkie clinic.  She worked for the company for 17 years and, up to 2016, had received a string of positive performance evaluations and promotions.

In the summer of 2016, however, her house burned down, and she took a week of leave.  She then extended that leave for about a month to care for her son, who was hospitalized.  (One provision of the FMLA allows leave if the “spouse, or a son, daughter, or parent, of the employee” has a serious health condition).  In total, she missed about six weeks.

Shortly after her return, and for the first time in her career, Lindsey was written up.  An August 31, 2016 disciplinary action form criticized Lindsey for not being “consistently present … during normal hours.”  Another disciplinary action form was issued in January.  Lindsey objected strongly to both disciplinary forms, and complained that she was “was being written up as part of her returning from leave of absence.”  Nevertheless, in August 2017 she was terminated.

Lindsey filed suit and brought several claims – some successful, some not successful – but this post focuses on her claim for FMLA retaliation.  As the Fifth Circuit recognized, a claim for FMLA retaliation requires showing that (1) the employee engaged in protected activity under the Act; (2) she was terminated (or otherwise punished); and (3) a “causal link” existed between the protected activity and the discharge.  An employee who proves these three factors is entitled to a presumption that the employer committed unlawful discrimination.

BMA claimed that Lindsey’s termination had nothing to do with her FMLA leave.  Instead, it argued, poor attendance led to her termination.  The Court dismissed this claim in short shrift, noting that one of the disciplinary forms didn’t identify a single date that she had supposedly missed.  As to another supposed absence, she had taken a sick day and timely informed the company.  (As a side note, arguing about excessive absences supports – rather than disproves – the plaintiff’s  claim that FMLA leave led to her termination).  The Court also noted that Lindsey’s first ever disciplinary action, in 17 years, came just three weeks after returning from FMLA leave.  This is strong circumstantial evidence that the leave was weighed against her.

And, interestingly, the Court rejected BMA’s claim that Lindsey was terminated for missing certain internal deadlines.  True, Lindsey had failed to turn in certain internal reports on the dates requested by her supervisor.  But the Court found that these were not real deadlines:

As anyone who has ever worked in an office environment can attest, there are real deadlines and hortatory ones—and everyone understands the difference between the two. Missing real deadlines results in actual adverse consequences for employer and employee alike—while failing to meet hortatory deadlines does not. BMA does not point to any adverse impact that Lindsey’s tardy reports had on the company. And in any event, there is no evidence BMA ever warned Lindsey that failure to submit the reports on time could jeopardize her job.

In short, the evidence showed that BMA did not truly care about these reports.  Notably, Lindsey had previously missed these internal deadlines on other occasions, without any consequence.  She testified that if your report was late, you could simply call BMA’s “Quality Improvement Director” and let her know.

BMA actions are typical of an employer defending against a lawsuit.  All employees commit minor infractions, miss unimportant deadlines, or show up a few minutes late.  The vast majority of the time of the time, the supervisor shrugs it off, or doesn’t even notice.  But when a company decides to fire an employee – for whatever reason – it retroactively makes mountains out of proverbial molehills.  Here, the Fifth Circuit saw through that tactic, and drew a critical distinction between “real deadlines” and “hortatory deadlines.”  Ms. Lindsey’s FMLA retaliation claim was, correctly, allowed to proceed.