Harris v. The August Aichhorn Center for Adolescent Residential Care, Inc.

Background

Rachelle Harris sued The August Aichhorn Center for Adolescent Residential Care, Inc. (Aichhorn) and Michael A. Pawel under the Family and Medical Leave Act (FMLA), as amended by the Families First Coronavirus Response Act. Her claims also invoked the Emergency Family and Medical Leave Expansion Act and the Emergency Sick Paid Leave Act. Harris alleged that the defendants interfered with her right to take leave related to her son’s school closure during the COVID-19 pandemic and retaliated by preventing her from obtaining a position at the Brooklyn residential treatment facility after that facility’s operations were transferred to The Child Center of New York.

Aichhorn informed employees on March 11, 2020, that its Manhattan facility would close and that its Brooklyn facility would be transferred to the Child Center. Harris had been hired by Aichhorn in September 2019. The parties disputed when her employment ended, whether she continued working remotely, whether she had authorization to work from home, and when she was informed of her termination. Aichhorn provided a letter dated April 1, 2020, stating that her employment ended March 31, 2020; Harris asserted that she was first informed of the termination on April 23, 2020.

Summary-judgment standard

Summary judgment is appropriate when the evidence shows that there is no genuine dispute about a fact that could affect the outcome and the moving party is entitled to judgment under the law. At this stage, the court does not decide which witnesses are credible or weigh competing evidence. Instead, it determines whether a reasonable jury could rule for the nonmoving party, viewing reasonable inferences in that party’s favor.

Timing and eligibility for emergency leave

The defendants argued that Harris could not rely on the emergency leave provisions because those provisions became effective April 1, 2020, while they claimed her employment ended before that date. The court found a genuine dispute about the termination date. Harris submitted text messages and other evidence that could support a finding that she continued performing or discussing work after the date asserted by the defendants. Because resolving the issue would require credibility determinations, the court ruled that Harris’s claims could not be rejected on the ground that her employment ended before the emergency provisions became effective.

The court noted that Harris had not worked for Aicchorn for the twelve months and 1,250 hours generally required for FMLA eligibility. However, the emergency provisions applied a 30-day employment requirement and could have made her eligible if she remained employed when those provisions became effective and otherwise satisfied their requirements. The court did not finally decide her eligibility at summary judgment.

FMLA interference claim

An FMLA interference claim requires proof that the plaintiff was eligible, the defendant was a covered employer, the plaintiff was entitled to leave, the plaintiff gave notice of the intent to take leave, and the plaintiff was denied FMLA benefits to which she was entitled.

The defendants argued that Harris never gave proper notice of her intent to take leave. The court observed that a request allegedly made on March 15, 2020, could not constitute notice under the emergency provisions because the Families First Coronavirus Response Act had not yet been enacted or taken effect. But Harris also testified that, after the law took effect, she contacted the defendants for clear instructions concerning FMLA leave. The court concluded that the record contained too many factual disputes to decide whether those communications provided sufficient notice. It therefore held that a jury would have to resolve the issue and denied the defendants’ motion for summary judgment on the FMLA interference claim.

FMLA retaliation claim

Harris’s complaint alleged that the defendants retaliated by preventing her from joining the Brooklyn facility after the Child Center took control of it. In her opposition to summary judgment, she also argued that the defendants retaliated by terminating her employment. The court declined to consider the termination-based theory because a claim not included in the complaint cannot be asserted for the first time in opposition to summary judgment.

FMLA retaliation claims use a burden-shifting framework. The plaintiff first must show that she exercised FMLA rights, was qualified for the position, suffered an adverse employment action, and experienced that action under circumstances suggesting retaliation. The court assumed for purposes of its analysis that Pawel had recommended that the Child Center not hire Harris. It nevertheless ruled that the alleged recommendation was not an adverse employment action under the circumstances. Harris was no longer employed by Aichhorn when she applied and interviewed for the Child Center position, so the alleged recommendation could not have discouraged her from exercising FMLA rights as an Aichhorn employee. The court also stated that the FMLA does not make every negative assessment shared by a former employer with a prospective employer a basis for retaliation liability.

The court therefore granted the defendants’ motion for summary judgment on the FMLA retaliation claim. Overall, the motion was granted in part and denied in part: it was granted as to retaliation and denied as to interference. The court directed the parties to appear for a telephonic pretrial conference.