A recent case from the First Circuit has held that the timing between an employee’s leave of absence and his subsequent termination of employment may be sufficient to establish a Family and Medical Leave Act (FMLA) retaliation claim. In Pagan-Colon v. Walgreens of San Patricio, Inc., Juan Pagan was employed as an assistant manager by Walgreens. While at work, Pagan experienced chest pains, heart palpitations and sweating. As his symptoms worsened, he went to the hospital emergency room. Pagan’s wife contacted his employer with updates on her husband’s condition. Pagan was admitted to the hospital for a week and, during this time, maintained contact with coworkers including another assistant manager whom he advised of an upcoming surgical procedure.
The store manager corresponded with Pagan to advise that he had not heard from Pagan and did not know the reason for his absence from work. The letter requested that Pagan contact Walgreen’s management to determine his entitlement to disability leave but added an admonition that, if they did not hear back from Pagan within 48 hours, there might be “negative consequences” for his job. It was determined that Pagan did not receive Walgreen’s correspondence until after the 48-hour deadline had expired. Walgreen’s manager made no other attempts to contact Pagan or to determine the reasons for his absence. Pagan was then terminated.
Subsequently, Walgreens determined that Pagan had medical documentation for his absence and elected to launch an investigation and reconsider his termination. Upon inquiry, however, the store manager concluded that Pagan had lied during the investigation and elected to terminate Pagan for his alleged dishonesty.
Pagan filed suit alleging retaliation under FMLA. He won at trial and Walgreen’s appealed. The appellate court stated that, to establish a case for retaliation, Pagan had to establish that (1) he availed himself of a protected right under FMLA, (2) he was adversely affected by an employment decision and (3) there was a causal connection between the protected conduct and the adverse employment action. Walgreens argued that it had established a valid and nondiscriminatory reason for Pagan’s termination and that the burden was on Pagan to prove that the alleged lying was pretextual.
The appeals court rejected Walgreen’s argument and found that Pagan had provided evidence of pretext by providing evidence that he had contacted Walgreens a number of times during his absence as well as the fact that Walgreen’s letter demanding a response within 48 hours had not been mailed until it was too late for Pagan to timely reply. The court stated that close temporal proximity on its own is insufficient to establish pretext. However, the close proximity between Pagan’s FMLA protected leave and his termination could constitute relevant evidence which, when combined with other evidence, can lead one to conclude that a causal connection exists between the two. The court also found that shifting explanations by Walgreens for Pagan’s termination further supported a jury determination that the basis used for the termination was contrived and, therefore, retaliatory.