Working mother can sue under Family Leave Act

A company that fired an employee two days after she took time off to care for her sick children could be sued under the Family and Medical Leave Act, a U.S. District Court judge in Rhode Island has ruled.
The employee claimed that her supervisor, upon terminating her, said: “Now you can go and take care of your kids.”
The company moved for summary judgment based on “rock solid evidence of [the employee’s] chronic absenteeism.”
But Judge William E. Smith denied the motion, finding that the employee had made out a prima facie case.
“The two days between Plaintiff’s exercise of FMLA rights (Wednesday) and her termination (Friday) make the events ‘very close’ and the timing highly probative of causality,” wrote Smith.
“The evidence of record suggesting [the supervisor] said he was letting her go so she could care for her children (and appeared angry and sarcastic) is probative and could be viewed as a reference to her protected leave,” the judge added.
Smith found no merit, however, to the employee’s hostile work environment claim, despite evidence that she was subjected to a coworker’s comments, including: “All you women do is talk” and “You should all go back to your country.”
“Without a hint of sexist name-calling or sexually charged innuendo, [these] comments are a far cry from the vulgar ‘gender-specific epithets’ that usually support sex-based claims of hostile work environment,” Smith said. “Telling ‘you people’ (assuming, that is, [the coworker] was referring to Hispanics) to leave the country, while coarse and stupid, is not sufficiently humiliating or intolerable.”
The 35-page decision is Bonilla v. Electrolizing, Inc., et al.
Mark P. Gagliardi of Providence represented the plaintiff employee. Adam M. Ramos, Jaime LaPorte and Richard Beretta, of Providence, were counsel for the defendant employer.
Contentious workplace
Plaintiff Enid Bonilla moved to the United States from Puerto Rico at age 10. In 2004, she began working for defendant Electrolizing Inc., a Rhode Island corporation in the business of applying a unique chrome plating to metal pieces and equipment.
The plaintiff worked with Alan Godin in the company’s shipping department. Both the plaintiff and Godin were supervised by Dave Richards.
The plaintiff claimed that Godin said, “I told Dave not to hire women … you shouldn’t be working here … I don’t know why they keep sending me women.”
Godin also allegedly swore, disparaged Salsa music in front of the plaintiff and made remarks such as: “You people come to this country and get all the benefits” and “If I had my way, none of you people would be here.”
The plaintiff said she spoke to Richards about Godin’s conduct, but she made no written complaints to him or anyone else at the company.
In February 2006, Richards warned the plaintiff that if she could not consistently work a full day and overtime when needed, he would be forced to fire her.
At about the same time, the plaintiff’s two children became ill and she received permission from Richards on Feb. 8 to leave early to take them to the emergency room. The plaintiff returned to work the next day but was fired the day after that.

Trial-worthy FMLA claim

Smith said that to prevail under the FMLA, the plaintiff had to demonstrate that there was evidence from which a reasonable jury could find that the decision to fire her was motivated by a desire to retaliate against her for taking time off to care for her children.
“[H]ere Plaintiff offers some corroborating evidence that could allow a jury to connect these dots,” the judge said. “[T]he Court cannot conclude that a fair-minded jury could not infer from the timing and statement that Richards acted with retaliatory animus.”
The undisputed evidence was that “Richards decided to fire Plaintiff after she left on February 8,” Smith said. “Whether or to what extent he considered that leave (even if it was intermittent and brief) in making that decision is a question best left for trial.”
The employer argued that the comment Richards made — “Now you can go and take care of your kids” — was “innocuous” and did not reflect retaliatory sentiment of any sort.
“But at this stage Plaintiff is entitled to all reasonable inferences, and the possible meaning of Richards’ statement in this context is one of them,” the judge responded.

No actionable harassment

Smith also addressed whether the employer could be held liable under Title VII for the hostile comments allegedly made by the plaintiff’s coworker, Godin.
“Godin’s unattractive and boorish banter about women talking too much and his dislike of sharing the workplace with them, while juvenile and imbecilic, was not severe ridicule and insult,” Smith said. “Title VII does not guarantee a workplace free from the type of opinions Godin expressed about women.”
The plaintiff’s claim of harassment based on offensive statements regarding Hispanic origin fared no better.
“The bottom line is that Godin may not have been a ‘man of refinement’ at Electrolizing (to say the least),” Smith observed. “Indeed one could reasonably call him boorish, crass, unsophisticated, rude and more.”
Yet, “while drawing the line between this conduct and harassment is not always easy, through a Title VII lens no jury could describe the plant as permeated with severe ridicule based on sex or national origin,” Smith wrote.