Summary judgment reversed in FMLA retaliation case

There are not too many Family Medical Leave Act cases in the Second Circuit. This case clarifies an important issue under FMLA as well as the standards governing tenure denial cases under the employment discrimination laws.

The case is Donnelly v. Greenburgh Central School District, decided on August 10. Donnelly was denied tenure after he took time off under the FMLA. His performance reviews were fine until he took FMLA leave. Afterward, his reviews went south, and they actually criticized him for that time off, even though he did so for legitimate medical reasons and was allowed to do so under the law.

This case raises two issues of importance. First, to sue under the FMLA, you have to work 1,250 hours over a one-year period. Donnelly claims he was denied tenure because he took FMLA leave. But the district court dismissed that claim in holding that Donnelly ahd only worked 1,247 hours, falling three hours short. The trial court arrived at this number by calculating plaintiff's hours under the union contract, which says that “[t]he regular working day for all K-12 teachers shall be the equivalent of up to one (1) hour in excess of the pupil’s regular school day . . . but in no case . . . shall the working day exceed seven (7) hours and fifteen (15) minutes.” The contract notes, however, that teachers have responsibilities that extend beyond the normal school day. Donnelly says that he worked far more than 1,250 hours in light of after-school responsibilities, such as working with students and preparing lesson plans. His performance review even made reference to Donnelly's late hours.

Reversing summary judgment, the Court of Appeals (Lynch, Calabresi and Lohier) says that the jury may find that the practical realities of a teacher's workday bring plaintiff's hours far beyond the 1,250 FMLA minimum. Under the regulations, the employer has the burden of proving FMLA ineligibility if it did not maintain an accurate record of employee hours. On summary judgment, the school district cannot meet its burden in light of plaintiff's affidavit detailing his excess hours. The regulations also say that school districts must prove FMLA ineligibility because full time teachers often work outside the classroom or at home in fulfilling their responsibilities. As the Court of Appeals holds that the union contract is not the sole means to count the plaintiff's hours under the FMLA, this issue is for the jury.

The second issue of importance concerns the standards governing public school tenure denial cases. The district court granted summary judgment, holding that plaintiff could not prove his case under the demanding multi-part test under Zahorik v. Cornell University, 729 F.2d 85 (2d Cir. 1984), which governs university tenure cases. Zahorik takes into account various factors relevant to the university context, including the fact that university tenure decisions are made through a multi-tiered and decentralized review process with many decisionmakers, college professors remain in one department for the rest of their careers, and tenure decisions often involve judgments on someone's arcane scholarship specialties. College tenure cases under Title VII and other discrimination laws are difficult to prove in light of the multi-factor test under Zahorik. But these factors are not relevant to public school tenure decisions, in part, because it is easier under state law to fire a tenured public school teacher than a tenured college professor, public school teachers can be transferred to different departments and even different buildings, public school tenure decisions involve fewer decisionmakers, and the relevant considerations governing public school tenure usually involve only teaching excellence and classroom performance, not scholarship. What it all means is that the Court of Appeals says that Zahorik is not relevant to teacher tenure cases, and the district court was wrong to hold Donnelly to that standard.

Having clarified that public school tenure cases are not controlled by the complex test governing college tenure, the Court of Appeals further holds that Donnelly can win his case because he was qualified for his position (having the appropriate certifications and licensing credentials) and was denied tenure under circumstances creating an inference of retaliation. Not only was he denied tenure shortly after taking FMLA leave, but his teaching evaluations sharply declined in the wake of his medical leave, and the evaluations criticize Donnelly for excessive absences when those absences were permissible under the FMLA. "The District may not, in its efforts to address teacher absenteeism, violate the law with respect to those teachers who miss school for purposes Congress has specifically protected."