“Former Blue Cube employee Elizabeth Cerda was fired for earning wages for time she did not work and threatening to expose her co-workers to COVID-19.” So starts the United States Court of Appeals for the Fifth Circuit’s recent opinion in Cerda v. Blue Cube Operations, L.L.C., No. 23-40404, 2024 WL 1168032, at *1 (5th Cir. Mar. 19, 2024). That’s a hard start to an appellate decision for an employee. It did not get better from there.
Cerda was employed at Blue Cube from between 2006 and April 21, 2020. In 2017, she underwent rotator cuff surgery and subsequently requested and received leave under the Family and Medical Leave Act (“FMLA“). Although the FMLA provides twelve weeks of unpaid leave, Blue Cube agreeably extended her leave for a total of eighteen months. For those who don’t like doing math, that 15 months of extra leave beyond what is protected under the FMLA. When Cerda returned to work in late 2018, she informed her supervisor, Steven Gibbons, that she would be using her 30-minute lunch breaks to visit her ailing father to ensure he took his medication and had something to eat – but made clear that she would not need any additional time beyond her break. However, Cerda consistently and substantially exceeded her allotted lunch break and failed to inform her employer that she was exceeding her lunch break. In doing so, she accepted payment for time that she knew she did not work. During an investigation into her stealing time, Cerda informed her boss that she was exposed to COVID and was going to take a day off. When she was told that she would need to use an allotted paid time off (PTO) day, Cerda “threatened to come to work and infect her co-workers the next time she was sick,” which was not received well by her employer. The investigation concluded, and Cerda did not deny, that she accepted payment for 99 hours that she did not work. Again, for the math deficient, that two and a half full weeks of pay.
Unsurprisingly, Blue Cube fired Cerda. In turn, Cerda sued her employer for wrongful termination, alleging FMLA interference and sexual harassment under Title VII of the Civil Rights Act of 1964. Let’s talk about why these claims failed.
Best Wrongful Termination Lawyer Blogs on Point:
- Yes, You Can Be Fired For Sexually Harassing Multiple Women At Work
- Yes, You Can Be Fired For Lying About Your Qualifications
- Yes, You Can Be Fired For Refusing To Work: The Tale of Rutledge’s Morning Standoff
Is stealing time and threatening coworkers a legitimate reason to fire an employee and block a wrongful termination claim?
Yes. Even if an employee could prove all elements necessary to establish a wrongful termination claim under either the FMLA or Title VII, the employer can still avoid liability by pointing to a legitimate business reason. Once the employer points to a legitimate business reason, the employee can still win by proving that the employer’s stated reason is pretext – meaning false or did not really motivate the employer.
The United States Court of Appeals for the Fifth Circuit unsurprisingly held that stealing two and half weeks of pay and threatening to expose coworkers to COVID were legitimate reasons to terminate Cerda.
Best Wrongfully Fired Law Firm Blogs on Point:
- Yes, You Can Get A Poor Review For Falling Asleep At Work And Leaving Early
- Yes, You Can Be Fired For Screwing Up Brain Surgeries
- Yes, Police Officers Can Be Fired For Punching Civilians And Lying About It
- Yes, You Can Be Fired For Bitching About Your Schedule And Showing Up Late
Do I have to give my employer notice of my intent to take FMLA to be protected?
Yes! The FMLA is designed to prevent employer’s from knowingly interfering or retaliating against an employee for exercising their rights under the statute. Thus, even when an employee meets all the criteria for eligibility for FMLA leave, it is essential that the employee provides notice to the employer about their intention to take such leave. While an employee is not required to explicitly mention FMLA, the information provided must reasonably alert the employer to the employee’s need for time off due to a serious health condition. The adequacy of notice hinges on whether the information conveyed to the employer is sufficient to inform them of the employee’s request for leave under FMLA qualifying circumstances. However, employers are not expected to anticipate an employee’s needs without being informed. While an employer may be prompted to inquire based on the employee’s statements, they are not obligated to possess clairvoyance.
Furthermore, employers have the discretion to enforce their usual notice and procedural requirements for FMLA-protected leave, except in extraordinary circumstances. Failure to comply with such requirements may lead to disciplinary action by the employer without constituting interference with the employee’s FMLA rights.
The United States Court of Appeals for the Fifth Circuit had no trouble holding that the employee failed to properly give notice: “She concedes she did not express an intent or desire to take leave. That is insufficient to put Blue Cube on notice that Cerda intended to take leave and that that leave qualified for FMLA coverage. Cerda knew how to obtain leave, as she had successfully done so in the past, and she indisputably did not comply with Blue Cube’s internal procedures for requesting FMLA leave here.” Id. at *3 (internal citations omitted).
While employees are not required to specifically state that they intend to exercise their right to leave under the FMLA, giving as detailed a request for leave, including mentioning the FMLA, provides better protection by eliminating any confusion.
Best FMLA Leave Attorney Blogs on Point:
- How Do I Notify My Employer I Need FMLA Leave?
- Yes, You Can Be Fired For Fraudulently Taking FMLA Leave
- Yes, You Can Be Fired For Poor Performance And Unrelated Absences While Using FMLA
- What Notice Does My Employer Have To Give Me Regarding My FMLA Rights?
Do I have to give notice to my employer of co-worker sexual harassment?
A sexually hostile work environment, as defined under Title VII, occurs when unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature creates an intimidating, hostile, or offensive working environment. This behavior becomes unlawful when it is severe or pervasive enough to alter the conditions of employment and creates an abusive working environment. To establish a case of sexually hostile work environment, an employee must present evidence showing each of the following: (1) the employee is a member of a protected class (gender); (2) the employee was subjected to unwanted or unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known about the harassment and failed to act promptly to address it.
Thus, the fifth element requires the employee to provide notice to the employer of sexually harassing conduct, which makes sense. The employer cannot stop conduct that it does not know about.
Once again, Cerda failed to report the alleged sexual harassment but did report that coworkers were calling her what she perceived as demeaning names, such as “shorty,” “grandma,” and “Ratatouille.” She these names were not sexual in nature nor based on gender, the Fifth Circuit Court of Appeals held they could not support a claim for sexual harassment.
Best Sexual Harassment Lawyer Blogs on Point:
- Why Reporting Sexual Harassment Is Critical
- Yes, You Can Be Fired For Boinking Your Boss’s Ex
- Yes, Managers Can Be Demoted For Not Reporting Sexual Harassment To HR
- Should I Report Racial Harassment By Coworkers? Yes!
What should I do if I was wrongfully fired today?
Consulting the best employment attorney in your area on a wrongful termination case is critical because navigating the legal complexities involved requires thorough knowledge and experience in employment law and an understanding of the intricacies of wrongful termination claims. Spitz, The Employee’s Law Firm, stands out as the ideal choice due to their extensive experience in handling such cases, demonstrated success with jury verdicts, ample resources to thoroughly investigate and litigate claims, a no fee guarantee ensuring access to justice regardless of financial circumstances, and a genuine commitment to prioritizing their clients’ well-being throughout the legal process. With their combination of experience, track record, resources, and client-centered approach, Spitz, The Employee’s Law Firm provides the assurance and advocacy necessary for achieving the best possible outcome in a wrongful termination case.
Disclaimer:
The wrongful termination, FMLA, and sexual harassment information provided on this website is intended for general informational purposes only and should not be construed as legal advice or relied upon as a substitute for professional legal counsel. Each legal matter is unique, and the outcome of any case depends on a variety of factors. Accessing or using this website does not create an attorney-client relationship between the user and Spitz, The Employee’s Law Firm, or any of its attorneys. Furthermore, sending electronic mail to Spitz or any of its attorneys does not create an attorney-client relationship nor impose any obligation on the firm or its attorneys. While we strive to keep the information on this website accurate and up-to-date, our lawyers make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the website or the information, products, services, or related graphics contained on the website for any purpose. Any reliance you place on such information is strictly at your own risk. Links to third-party websites are provided for convenience and informational purposes only. Prior results obtained for victims of wrongful termination or sexual harassment do not guarantee a similar outcome. Each case is different and must be evaluated on its own merits. If you require legal advice or representation, please contact Spitz to schedule a consultation with one of our top employment law attorneys. Top of Form