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First Circuit finds that Walgreens violated employee’s FMLA rights

Yesterday, the U.S. First Circuit Court of Appeals, which has jurisdiction over Maine, other New England states, and Puerto Rico, affirmed a jury verdict against Walgreens in a Family and Medical Leave Act (FMLA) case. This case presented an interesting issue of first impression for the First Circuit–whether an employee fired in violation of the FMLA is entitled to lost overtime pay.

The case arose in Puerto Rico when Walgreens fired the plaintiff, Juan C. Pagan-Colon, almost immediately after he presented an assistant manager at his store with a note from his doctor that said he would need a week of medical leave. Pagan-Colon presented this note to the assistant store manager on May 17, 2008. On May 23, 2008, the store manager mailed Pagan-Colon a letter dated May 19, 2008, which said that he had to contact Walgreens management within 48 hours to discuss his eligibility for disability leave or else there might be “negative consequences.” Even though it was impossible for Pagan-Colon to meet that 48-hour deadline since the manager didn’t mail the letter until after the deadline expired, Pagan-Colon immediately went to the store to discuss the situation. After Pagan-Colon explained to the store manager that he had provided a doctor’s note to the assistant store manager, the store manager fired him and refused to provide him with an explanation for the termination decision.

After firing Pagan-Colon, the store manager realized that he should speak to the company’s lawyer since Pagan-Colon had a doctor’s note excusing his absence. The company claimed that, at that point, it decided to try to determine if Pagan-Colon had actually provided the assistant store manager with a doctor’s note. After its investigation, it concluded that Pagan-Colon lied when he said he provided a doctor’s note to the assistant store manager. It claimed that, among other things, it reviewed the store’s surveillance video and did not see Pagan-Colon give the note to the assistant store manager. There was one problem with this explanation – the video actually did show Pagan-Colon give the note to the assistant store manager. The video was so clear, in fact, that Walgreens reversed course and admitted at trial that the video showed Pagan-Colon giving the assistant store manager the note.

Under the FMLA, an employer who violates an employee’s rights must compensate him for “any wages, salary, employment benefits, or other compensation denied or lost . . . by reason of the violation.” The trial court determined that the term “other compensation” encompassed overtime pay and awarded Pagan-Colon lost overtime pay as part of his lost wages. On appeal, Walgreens argued that the FMLA does not permit recovery for lost overtime pay. As a matter of first impression, the First Circuit rejected Walgreens’ argument and affirmed the trial court’s decision to award lost overtime pay to Pagan-Colon.

The First Circuit’s decision was not all positive for Pagan-Colon. It also affirmed the trial court’s decision not to award Pagan-Colon “liquidated damages” on top of his lost pay and benefits. Moreover, the First Circuit refused to reverse a decision the trial court made against Pagan-Colon’s wife who had brought a claim under Puerto Rico law. The First Circuit, instead, asked the Puerto Rico Supreme Court to weigh in on that claim because the particular Puerto Rico law at issue is unclear.

Unfortunately, it is not uncommon for employers to retaliate against employees who have to take protected FMLA leave. If you or someone you know has experienced similar retaliation, you should contact an experienced employment lawyer to learn more about your rights.