In Almeida v. Athena Health Care Associates, Inc., 2009 WL 490066 (D. Conn.), a company decision to terminate an employee five days after she made her intent to take FMLA leave known may result in liability for both FMLA retaliation and interference.

In 1995, Monique Almeida was hired as a Certified Nurses Assistant by Bayview Health Center, Inc. Bayview is a nursing home located in Waterford, Connecticut and employs approximately 201 employees. Athena Health Care Associates, Inc., is a management company which contracts with various independently owned long-term care facilities, including Bayview, to provide management services.

In 2000, Almeida applied for and obtained a job as a unit secretary with Bayview. While performing that job, she continued to work on a periodic basis as a nurses assistant with Bayview on a per diem basis. In January 2003, Darrly LeCours was hired as the Adminstrator of Bayview. In that same year, Almeida resigned her position as unit secretary and accepted full-time employment with another employer; however, she continued to work as a per diem nurses assistant at Bayview.

A few months later, Almeida indicated her interest to Bayview’s Director of Nursing Susan Barnard in returning to work full-time at Bayview. Bayview rehired Almeida as a full-time nurses assistant. Later, Bayview reassigned her to an open unit secretary position following Almeida’s re-application for the position.

Almeida had taken several FMLA qualifying leaves during her employment tenure with Bayview. In 1999, she took intermittent FMLA leave to care for her daughter. Bayview had no issue with the leave. In 2004, Almeida took intermittent FMLA leave again, without objection from Bayview, to care for her mother. In early 2005, Bayview again granted permission for Almeida’s FMLA leave to care for her fiancée. During the summer of 2005, she once again took FMLA leave (this time for three months) to have bunions removed from her foot. Almeida claimed that Bayview wanted her to return to work earlier than her doctor had recommended and that Barnard gave the receptionist at Almeida’s doctor’s office “a really hard time” about how soon she could return to work. Shortly after returning to work from this three month leave, Almeida ended up taking an additional day of FMLA leave because of her mother’s hospitalization.


Almeida again sought FMLA leave in March 2006. She approached Barnard and indicated that she would need medical leave for upcoming surgery to have bunions removed from her other foot. According to Almeida, Barnard asked, “Does this mean you’re going to take another three months off?” Barnard did not deny making this statement. Following their meeting, Barnard sent a letter to Almeida stating in part:

Yesterday you advised me that you were planning on elective surgery on April 6, 2006. You became eligible for your first Family Medical Leave on September 28, 2004 to take care of your mother. Subsequently, you received additional FMLA time for yourself for your foot surgery and for the care of your significant other. Upon calculation of lost time due to FMLA, it has been determined that until September 28, 2006, you have five weeks of FMLA time left available to you per federal law guidelines. Please be advised that any time taken beyond the five weeks of remaining leave between now and September 28, 2006 will result in loss of benefits and termination of employment under the law.

Four days after sending the letter, Bayview terminated Almeida’s employment. Almeida had not even had a chance to complete her FMLA paperwork for the requested leave. At some point near her termination, Bayview called Almeida in to meet with Barnard and LeCours. During this meeting, LeCours asked her if she was happy with her job.

Almeida responded, “I am not that happy with my job” because she was restricted to 30 hours per week as a Unit Secretary. Almeida told LeCours that she felt that the work required more than 30 hours per week and that she “can’t get the job done” without working additional hours. Almeida had been issued a written warning on September 19, 2005 for working over 30 hours in a week without prior permission from a supervisor. Almeida then added, “All around I love my job.” LeCours allegedly stated, “Well, we’re going to have to let you go because you’re not happy.” LeCours told Almeida that she had a “negative attitude.” Almeida asked, “Overall job performance-wise, what am I not doing to lead to this?” and LeCours responded, “Oh, nothing.” Almeida asked, “You’re getting rid of me because I’m not happy?” and LeCours said, “Yeah, but don’t worry. I won’t fight unemployment. I know you need a paycheck.”

Approximately one month following Almeida’s termination, Bayview asked LeCours to resign from his position because he was not showing up at work, was having inappropriate relationships with people at work, was swearing at staff and was running a second business out of Bayview’s premises.

Following her termination, Almeida brought suit against Bayview and Athena alleging, among other claims, an FMLA interference claim and an FMLA retaliatory discharge claim. Defendants Bayview and Athena, after a period for discovery, moved for summary judgment on her claims.

Initially, Athena argued that it did not employ Plaintiff and therefore could not be liable to her pursuant to her FMLA claims. The district court indicated that under either the single or joint employer doctrines, Athena could be liable to the Plaintiff. “A single employer situation exists where two nominally separate entities are actually part of a single integrated enterprise so that, for all purposes, there is in fact only a single employer.” Clinton’s Ditch Coop. Co., Inc. v. NLRB., 778 F.2d 132, 137 (2d Cir.1985), cert. denied, 479 U.S. 814, 107 S.Ct. 67, 93 L.Ed.2d 25 (1986), quoting NLRB v. Browning-Ferris Indus. of Pa., Inc., 691 F.2d 1117, 1122 (3d Cir.1982). “The single employer standard is relevant when separate corporations are not what they appear to be, that in truth they are but divisions or departments of a single enterprise.” Clinton’s Ditch Coop. Co., Inc. v. NLRB., 778 F.2d 132, 137 (2d Cir.1985), cert. denied, 479 U.S. 814, 107 S.Ct. 67, 93 L.Ed.2d 25 (1986), quoting NLRB v. Deena Artware, Inc., 361 U.S. 398, 402, 80 S.Ct. 441, 443, 4 L.Ed.2d 400 (1960).

Courts look to four factors when determining whether two employers are functioning as a single employer: (1) interrelated operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership.

Liability could also be established through a joint employer relationship. The factors relevant to determining joint employer status are “whether the alleged joint employer (1) did the hiring and firing; (2) directly administered any disciplinary procedures; (3) maintained records of hours, handled the payroll, or provided insurance; (4) directly supervised the employees; or (5) participated in the collective bargaining process.” AT & T v. NLRB, 67 F.3d 446, 451 (2d Cir.1995).

Both parties alleged a number of factors supporting their arguments for and against Athena’s liability. The district court found most significant LeCours’ deposition testimony that Athena’s Director of Operations Ilene Berkon-Cardello approved Plaintiff’s termination, and that the standard procedure in terminating a Bayview employee was to first seek Athena’s approval. A key factor in the single employer test is centralized control of labor relations as shown by entities sharing policies concerning hiring, firing, and training employees, and in developing and implementing personnel policies and procedures. This factor led to the court denying Defendants’ motion for summary judgment as to Athena’s lack of liability.

Noting that the Plaintiff had brought both FMLA interference and FMLA retaliation claims, the district court provided a succinct explanation of the difference between the two types of claims. FMLA retaliation claims include employer intent as a material element of proof. FMLA retaliation claims are thus evaluated pursuant to the burden shifting formula articulated in McDonnell Douglas Corp. v. Green. An FMLA interference claim, in contrast, does not require a showing of intent to establish the claim. The plaintiff need only prove that the employer impeded, in some manner, the plaintiff’s exercise of her FMLA rights.

Defendants main argument was that Almeida’s FMLA retaliation claim lacked any proof of a nexus between her protected activity under the FMLA and her termination beyond the mere coincidence of timing. The district court, however, found the temporal proximity (five days following her FMLA leave request) to be particularly compelling in this case and noted that other evidence of retaliation existed in the case. Of interest to the court was Barnard’s response to Plaintiff’s request for FMLA leave for surgery on her other foot: “Does this mean you’re going to take another three months off?” Although the statement/query was subject to various interpretations, any doubt was removed by Barnard’s letter to Plaintiff on the following day:

Upon calculation of lost time due to FMLA, it has been determined that until September 28, 2006, you have five weeks of FMLA time left available to you per federal law guidelines. Please be advised that any time taken beyond the five weeks of remaining leave between now and September 28, 2006 will result in loss of benefits and termination of employment under the law.

Bayview’s termination of Plaintiff four days following the letter emphasizes the negative connotations contained therein. In effect, Bayview prevented Plaintiff from even formally filing for FMLA leave. The FMLA protects attempts to exercise rights under the statute which would bring informing one’s supervisor of one’s intent to use FMLA leave under its purview.

Defendants challenged Almeida’s interference claim as merely a restatement of her FMLA retaliation claim and that it should be therefore dismissed. The court determined, however, that Almeida had met the elements of a prima facie case and her claim would survive. 1) Almeida was an eligible employee under the FMLA as she had taken FMLA leave on several previous occasions; 2) the defendant was an employer under the FMLA; 3) Almeida was entitled to leave under the FMLA as Bayview had indicated she had five weeks remaining and had approved FMLA leave previously for surgery on the other foot; 4) she gave notice to the defendant of her intention to take leave by contacting Barnard; and 5) the defendant denied her rights to which she was entitled by the FMLA by firing her and preventing the use of FMLA leave.

In this case, the employer’s biggest mistake was terminating the employee five days after she requested FMLA leave for a condition that had been previously approved for FMLA leave in the past. The employer attempted to manufacture a “bad attitude” justification for the termination but did a poor job of that as well. Indicating in a letter that the employee risked termination if she exceeded her remaining FMLA leave time was not a mistake; however, when coupled with the subsequent termination it became an inseparable chain of events tending to prove FMLA retaliation and interference.

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