In Donnelly v. Greenburgh Central School Dist. (2d Cir. Aug. 10, 2012), plaintiff, a former high school teacher, alleged that his employer unlawfully denied him tenure in retaliation for taking protected leave pursuant to the Family and Medical Leave Act (“FMLA”). Plaintiff received negative reviews and was denied tenure shortly after he took medical leave for gallbladder surgery. The Second Circuit reversed the trial court’s dismissal of plaintiff’s claims, finding that plaintiff presented evidence sufficient to reach a jury on the issues of whether (1) he worked the requisite 1,250 hours to qualify for the FMLA’s protections, (2) he was “qualified” for tenure, and (3) the denial of tenure gave rise to an inference of retaliatory intent.
1. Hours Worked
It was undisputed that plaintiff had worked 172 days in the relevant time frame, which when coupled with the 7.25 hour workday specified in the Collective Bargaining Agreement (CBA) resulted in a total of 1,247 hours (3 short of the FMLA threshold). The crucial inquiry, however, was the hours actually worked. Defendant could not meet its burden of showing that plaintiff could not demonstrate that he worked the additional 3 hours. FMLA regulations and the parties’ CBA acknowledged that teachers routinely work more than 7.25 hours per day, and plaintiff’s principal observed that plaintiff “often stays late into the afternoon working with his kids”. In addition, the hours plaintiff claimed to have worked outside normal working hours were arguably “devoted to activities that constitute ‘an integral and indispensable part of the principal activity of the employment'” and hence “counted” as hours worked under the FLSA’s Portal-to-Portal Act, 29 U.S.C. § 254. That statute provides (in pertinent part) that employees need not be compensated for
activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.
The court found it unnecessary to “definitely resolve the precise limits of what sort of work teachers do at home or after hours that is integral to teaching, and which work is merely preliminary or postliminary to that principal activity”, because “[i]t is sufficiently clear, as is recognized in the CBA and the regulations, that the principal work activity of teachers must extend beyond the hours spent in front of a class, and will include such basic activities as preparing lesson plans, helping students who have difficulty absorbing the class material, and preparing and grading tests and homework.”
The court further rejected defendant’s argument that, because plaintiff did not say exactly what he did during non-school hours, he could not raise an issue of fact that he worked the extra 3 hours required by the FMLA:
This is not a case, however, in which an employee with a 9-to-5 job with defined office tasks claims to engage in mysterious unspecified additional activities off-site. The CBA acknowledges that job-required tasks that are part of a teacher’s primary work responsibility are regularly performed by teachers outside the hours in which the students are in the classroom. It may reasonably be inferred from Donnelly’s declaration that he claims simply that these same tasks sometimes take more time to complete than the one additional hour specified in the CBA. Moreover, the District ignores [Principal] Chakar’s evaluation’s reference to Donnelly’s long hours. Besides corroborating Donnelly’s claim that he did something before and after the required hours, Chakar’s statement makes clear that he, as Donnelly’s supervisor and a representative of the District, regarded Donnelly’s long hours not as preliminary work distinct from the principal activity for which Donnelly was employed, but as work that the District approved and encouraged as part of its educational mission. According to Chakar, Donnelly did not merely hang around the school until late in the day; rather “[h]e often stay[ed] late into the afternoon working with his kids to ensure their success.” “Working with the kids to ensure their success” is as good a definition of the “principal activity” of a secondary school teacher as we can imagine. …
Donnelly alleges that he worked, but did so – as both the CBA and the regulations recognize will sometimes occur – during hours when he was not required to be at school. A reasonable jury could conclude that even if a teacher is permitted to go home after seven and a quarter hours, he or she is still required to prepare proper lessons and formulate and grade examinations, and that the District will not accept as an excuse for inadequate lesson plans and ungraded student papers that the teacher did all he or she could in the time required under the CBA. The law does not preclude teachers who grade papers or plan their lessons at home from ever counting that time for purposes of FMLA eligibility.
A jury reviewing the evidence in this record might well conclude that the evidence that Donnelly presents is insufficient to persuade it to find that he spent three or more hours beyond the CBA-maximum time engaged in activities integral to his employment. That factual inquiry is not ours to answer. The District has raised questions about the credibility and probative force of Donnelly’s evidence that he worked enough additional compensable hours to qualify for FMLA leave. But these questions are, on this record, to be answered by the jury, which can assess Donnelly’s and Chakar’s testimony and credibility and determine how much time, if any at all, Donnelly worked beyond that specified in the CBA, and whether such time was compensable under the principles of the FLSA [and hence the FMLA].
2. Qualification For Position
The court held that plaintiff presented enough evidence that he was “qualified” for the tenured position, and that the trial court improperly required plaintiff to “meet the exacting standard” applicable in “the context of allegations of discriminatory denial of tenure to university professors” under Zahorik v. Cornell Univ., 729 F.2d 85 (2d Cir. 1984). Zahorik‘s heightened standard was articulated in the context of a university tenure denial, and its factors were generally inapplicable in the high school context. Thus, in order to make out a prima facie case of FMLA retaliation, plaintiff was not required to show that he was “entitled to tenure”, but only that he “has demonstrated that he held the basic qualifications to be eligible for promotion.” Plaintiff did so, as he “held the necessary educational and licensing credentials to serve as a teacher”, he had worked as a teacher for the necessary time period to be a candidate for promotion, had strong performance reviews, and nothing in his record indicated that he was “manifestly unsuitable for promotion.”
3. Retaliatory Intent
Third, plaintiff presented enough evidence to show that “the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent.” In particular, before plaintiff took medical leave, his evaluations were “extremely positive”, but after his leave, his evaluations “deteriorated.” Indeed, plaintiff’s negative evaluations “expressly penalize [plaintiff] for his excessive absences, including those taken … pursuant to the FMLA.” Thus, that defendant “manifestly penalized [plaintiff] for absences that a jury could find were protected by the FMLA provides a sufficient basis to send the question of [defendant’s] retaliatory intent to the jury to reach a final determination.” Plaintiff therefore “presented direct evidence that his arguably FMLA-protected leave was held against him in the tenure process [that] clearly suffices to meet the ‘minimal’ burden of showing a prima facie case.”
Defendant also failed to establish as a matter of law that its decision to deny tenure was based on legitimate non-retaliatory grounds. The FMLA “is violated when an employer is motivated by retaliatory animus, even if valid objective reasons for the discharge exist” and defendant was not permitted “in its efforts to address teacher absenteeism [to] violate the law with respect to those teachers who miss school for purposes Congress has specifically protected.”