Robert Straub sued his former employer, the County of Maui (“County”), alleging Family and Medical Leave Act (“FMLA”) interference and retaliation, association discrimination under the Americans with Disabilities Act (“ADA”), and age discrimination.  A Hawaii federal court held that leave based on falsified FMLA certifications could not support claims for FMLA interference or retaliation, and Straub could not establish age discrimination because his replacement was only 5 years younger than him.  However, the County must go to trial over:

1. The retaliation claim for actions it took after terminating Straub;
2. The claim for ADA association discrimination because the County did not document Straub’s performance issues; and
3. Whether the County would have terminated Straub earlier had it known he falsified two leave certifications and used County time and resources for personal business.

The case is Straub v. County of Maui (D. Haw. Sept. 24, 2019, amended Oct. 10, 2019).

Background

While working for the County, Straub took three periods of FMLA leave to care for his ill wife.  Straub applied for and was approved to take FMLA leave from November 2-13, 2015; June 22 - July 8, 2016; and January 3-20, 2017.  On January 27, 2017, Straub was told he would be laid off effective January 31, 2017.  Straub was 71 years old at the time.

On July 12, 2017, Straub filed a charge of discrimination with the Hawaii Civil Rights Commission (“HCRC”) and the Equal Employment Opportunity Commission (“EEOC”) alleging discrimination based on retaliation, age, and disability.  In October 2017, the County stopped purchasing shirts from Straub’s company, from which it had been purchasing shirts since 2011.

On November 9, 2017, Straub filed a first amended complaint in Hawaii federal district court alleging FMLA interference and retaliation, association discrimination under the ADA, and age discrimination.  The County countered that Straub had been terminated because of budget cuts and because he lacked customer service skills, was hard to work with, and had a negative attitude.  The County further argued that Straub would have been terminated earlier had they known he had falsified two of his FMLA certifications and had used County time and resources for his shirt business.

FMLA Interference and Retaliation Claims

The Court found that Straub had falsified his last two applications for FMLA leave.  As such, he could not rely on those two leaves to support his claims for FMLA interference or retaliation.  Although his 2015 leave was not fraudulent, the Court determined that it was too far removed from his January 2017 termination to support a claim of FMLA interference.

However, the Court determined that Straub had established a prima facie case of retaliation because the County stopped purchasing shirts from his company a few months after he filed a charge of discrimination with the HCRC and EEOC.  The Court reasoned that “adverse employment actions can extend beyond employment-related retaliatory acts.”

ADA Association-Discrimination Claim

The Court also determined that Straub established a prima facie case of ADA association discrimination by showing:  (1) he was qualified to perform the job; (2) his employer knew he had a relative or associate with a disability; (3) he was subjected to an adverse employment action; and (4) there was a causal connection between the adverse employment action and association with a disabled person because he was terminated only four days after returning from leave to care for his ill wife.

The County explained that it had been facing budget cuts and Straub was terminated because he lacked customer service skills, was hard to work with, and had a negative attitude.  The Court found those to be legitimate nondiscriminatory reasons for his termination, but also noted that Straub only had a few blemishes on his record, and none of them were formal:  “Other than a few complaints, none of which were formally documented by the County, the County has provided very little reason to fire Straub.”  The Court also found the budgetary reason unpersuasive because the County could have laid off another employee to reduce its budget.  Because of the lack of documentary evidence, the Court allowed Straub to proceed with his ADA association discrimination claim.

Age Discrimination Claim

To demonstrate age discrimination, Straub had to establish that he was replaced by a “substantially younger employee.”  Straub was 71 years old at the time of his termination, and his replacement was 66.  The Court noted that an age difference of less than 10 years is “presumptively insubstantial,” and thus, Straub could not establish an age discrimination claim.

After-Acquired Evidence

Finally, the County argued that it would have terminated Straub earlier because he had falsified two FMLA leave applications and he had used County equipment and time to run his shirt business.  The Court determined that without evidence of past practice or County policy, there was a genuine issue of material fact to be decided at trial as to whether the County would have actually fired Straub for those offenses.

Key Takeaways

• Adverse employment actions can extend beyond employment-related retaliatory acts. In other words, adverse action taken against a terminated employee can lead to a retaliation claim.
• Document, document, document. While being difficult to work with and having a negative attitude may be legitimate nondiscriminatory reasons for termination, it is always better to have a factually-based, formal, written document detailing the factual basis for such conclusions.
• Employers who would terminate employees for falsifying leave applications or using company resources for personal business should ensure their written policies reflect that.