Unreported Bathroom Breaks, not Reprisal, Flush Wayfair Worker's Job

Ogden, UT (WorkersCompenstaion.com) — While a supervisor’s off-the-cuff negative statements about medical leave could help show retaliation, the supervisor’s actions can speak even louder. That was the case in Daimaru v. Wayfair, LLC, 2:21-cv-00660-JNP-CMR (D. Utah 09/26/22), where the court found that a supervisor for an online retailer was more than accommodating to a customer service employee who allegedly spent a good portion of the workday in the restroom.

The case manager handled escalated customer service calls for Wayfair. She generally received positive reviews, but she had a habit of disappearing into the bathroom for fairly long stretches multiple times per day. Her supervisor eventually suggested she might need FMLA leave. The case manager took him up on that suggestion and obtained intermittent medical leave, which she was to use in 30-minute increments.

Eventually, the supervisor fired the case manager for failing to follow the company’s attendance policies. Specifically, the supervisor cited her failure to clock out and to notify HR when she used her FMLA. He claimed she was using bathroom breaks to avoid work.

The case manager sued the company for retaliating against her for exercising her FMLA rights.

Finding that the company’s stated reason for terminating the employee was legitimate, the court explained that to proceed with her lawsuit, the case manager had to show that the company’s explanation for ending her job was just a cover for retaliation.

The court acknowledged that the company fired the case manager shortly after she last used her medical leave. However, the court observed, close temporal proximity between FMLA leave and termination is not sufficient to establish pretext. The case manager had to show something more.

Next, the court rejected one of the employee’s central arguments--that her supervisor’s comments were evidence of his animus towards employees using FMLA leave. Specifically, she pointed to the supervisor’s alleged statements that her breaks were "typical work avoidance behaviors" and that she was simply using FMLA to "shield herself" from termination.

The court found those arguments unpersuasive for these reasons:

• The supervisor did not make the statements during the case manager’s employment. Rather, he made them at a deposition, long after the events of the case transpired. He was simply trying to explain to the employee’s lawyer why he believed the breaks she took were not for medical leave, but to avoid work. The supervisor’s comments did not demonstrate “that he had any animus towards legitimate usage of FMLA leave,” the court wrote.
• There was evidence that other workers were fired for using breaks to avoid work, the court noted.
• There was substantial evidence that the supervisor “went out of his way” to accommodate the case manager’s FMLA leave, the court stated. In fact, he was the person who suggested she take it in the first place when he noticed she regularly needed extra bathroom breaks.
• The supervisor often reminded the worker to notify the company of her leave. Further, despite the company’s strict work avoidance policy, the supervisor claimed that he had a personal policy of giving his employees the benefit of the doubt. His treatment of the case manager bore this out; he gave her such an opportunity when he first noticed discrepancies in her timekeeping. 

The court concluded that the supervisor’s purported animus did not demonstrate that the company’s reason for terminating the case manager was a cover for retaliation. 

The court granted the company's motion for summary judgment.

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