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Case number 21-7129, Timothy Skrinikov, at-balance, versus Federal National Mortgage Association.

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Mr. Saub, for the at-balance, Mr. Churchill, for the appellee.

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Good morning, Your Honors.

[00:00:17] Speaker 01:
Good morning.

[00:00:18] Speaker 01:
Please, the Court.

[00:00:18] Speaker 01:
Good morning.

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I'm Micah Saub.

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I represent Plaintiff Tim Skrinikov.

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I'd like to reserve four minutes for rebuttal.

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Your Honors,

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When an employer bars an employee from returning to work at the expiration of his or her FMLA protected leave period, the employer has interfered with the employee's exercise of his FMLA rights.

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In a scenario like that, the employee has satisfied his or her burden to present a prima facie case of FMLA violation.

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And at that point,

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The burden shifts to the employer to demonstrate, try to demonstrate, that its actions were legitimate.

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But Fannie Mae cannot do that in this case.

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Didn't it?

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Fannie Mae argues in its brief that the job was eliminated.

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Fannie Mae does not.

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The position was automated and eliminated, and I didn't see a response to that in your reply.

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I beg your pardon, Your Honor.

[00:01:26] Speaker 03:
Did I miss something?

[00:01:28] Speaker 01:
Your Honor, I'm not sure that Fannie Mae actually made that argument, only that was the reason for not returning him.

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Maybe this is a distinction without much meaning, but far more important.

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Definitely.

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Far more important, Your Honor, is the law that governs such claims.

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In order to demonstrate

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that an employee was removed for some other legitimate reason, which, of course, is perfectly acceptable in an FMLA scenario.

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You have to demonstrate that the job did not exist when the employee was ready to return.

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Is your point that they didn't prove that in the district court?

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Because that's what they argue in their appellate brief, that the job no longer existed.

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Isn't that its argument?

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That's correct.

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What did you say in your reply brief?

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I'm afraid I don't remember the words of my reply brief well enough to answer that question, Your Honor.

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But I will say that this argument was proffered by the defendant without any evidentiary support.

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But more importantly, the law requires... That's why I asked you the question.

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I would have expected you to

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respond.

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I'm sorry.

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I didn't see that.

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There's there was no evidentiary support for that claim.

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And in fact, the evidence shows that they advertised this same position after Mr. Skrinikoff was fired.

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He received a phone call from a headhunter saying, hey, this job looks really good for you.

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And he said, yeah, it sure does, because it was my job.

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So I'm sorry, I have the end of a cold.

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So my voice is weak.

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But

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You said Mr. Salve that the employer would have to prove that the job no longer existed when the employee was ready to return to work.

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I'm not sure I'm following the importance of the timing.

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If the employee returned to work and one day later the employer said, getting rid of your job, why wouldn't that be equally a full defense?

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Why does the timing when the employee was ready to return to work?

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And let me just put my cards in the table.

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It seems to me that Andy May wanted to allow Mr. Shkrumakov to take the paid leave under its policy.

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He could have terminated the job and gotten rid of him earlier, but it afforded him the full period paid disability leave before formally eliminating the job.

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I'm not sure what's wrong with that.

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Well, I'm not sure that that's factually correct because in fact, he was covered by this leave policy and there's no evidence in the record that he would have ceased to be covered by whatever leave policy.

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Of course, FMLA leave is not inso facto paid leave.

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And if Mr. Skrinikoff was being paid, you know, there's just nothing in the record that indicates that they had any desire for him to be paid or for him to continue to be paid.

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But as to the legal.

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My real question is, is how you characterize the employer's burden that had to prove a job no longer exists when the employee was ready to return to work?

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Can it just show at any time that the job no longer exists and that's its prerogative?

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Yes, absolutely, Your Honor.

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It is absolutely the employer's prerogative to terminate, to have a reduction in force whenever there is a legitimate termination of a job.

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Or for that matter, if Fannie Mae believe that Mr. Skrinikov's job performance was inadequate or that his attitude was bad,

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They could have fired him at any time, even while he was on leave.

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They didn't do so.

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They didn't do so because there wasn't evidence in the record to support that.

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Now, as to the issue of the timing... I just don't understand that argument.

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I'm sorry.

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That didn't make any sense to me.

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Judge Tatel, when

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When somebody's out on FMLA leave, they're still subject to the ordinary vicissitudes of employment, right?

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If there's a reduction in force, you're out of luck.

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You don't get special protection because you're on FMLA leave.

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However, if the employer wants to say, hey, we got rid of this employee for legitimate reasons.

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And first and foremost, the employer has to prove that as a matter of fact.

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And there's no evidence in the record to support that claim.

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Second.

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Is the arbitration proceedings not evidence?

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It does.

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It does.

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And there was a bold assertion by one of the witnesses that that was the reason that they chose not to keep him after his leave period expired.

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That was what the testimony.

[00:07:01] Speaker 04:
There was testimony by Lori Mallon.

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about and Kerry Lee and Kristen Harrison about automating the position.

[00:07:11] Speaker 01:
Automating?

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Yeah, that's what they said was the reason.

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I think there's also testimony from Mr. Skrinikoff indicating that he was hired in part to implement that automation, but that automation affected only a very small part of his job.

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But what's I think more important is that Fannie Mae does not hang its hat on having legitimately terminated Mr. Skrinikov.

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They claim that it was proper for them to terminate him because he didn't submit his FMLA leave return to duty, fitness for duty certification in time.

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That can't be why they terminated him, because he was given all his federal and DC FMLA leave and also given the short-term disability leave.

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He got all of that.

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They gave it all to him.

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So that can't be, and it wasn't until he returned that they then fired him listing this other reason.

[00:08:27] Speaker 01:
No, no, Judge Malin.

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They, he had used up his full period of federal

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FMLA leave.

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He was then in the position of... They gave him all of his DC FMLA leave too, retroactively, but they gave it all to him.

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That is true.

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Okay.

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I mean, I think they also gave him some of the short-term disability leave too, did they not?

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He got till what, November 1st?

[00:08:54] Speaker 01:
I missed that last thing.

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He was out until November 1st.

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Um, I, I don't, I don't know whether in fact he received any short-term disability leave afterwards, but, um, I don't think that's right.

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Regardless, he got all of his, this claim is not a denial of leave allowance.

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This is a claim for denial of job restoration rights and for interference.

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What Fannie Mae did.

[00:09:26] Speaker 05:
Why was it interference if he got all the leave?

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At the end of the day, he got it all.

[00:09:30] Speaker 01:
The interference was in his right to be restored to his job.

[00:09:34] Speaker 05:
So the interference claim is the same as what you called his restoration claim.

[00:09:38] Speaker 05:
There's one claim.

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He had a right to be restored.

[00:09:41] Speaker 01:
Yeah.

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I mean, I think it's a matter of semantics.

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I would say that there are two different claims, but effectively they're covered the same.

[00:09:46] Speaker 05:
The argument is exactly the same, is that he wasn't given his job back.

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He wasn't given his job back.

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and they interfered with his efforts to return to work.

[00:09:58] Speaker 03:
Okay, for your interference claims, I get it, there's two categories.

[00:10:01] Speaker 03:
For the interference claims, you cite Euralon McFadden and Gordon, and those cases require that you show prejudice for your interference claims, right?

[00:10:14] Speaker 01:
I'm sorry, I didn't hear you.

[00:10:16] Speaker 03:
I'm sorry.

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Those cases that you cite for the burden of proof require that you show prejudice.

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These are for the interference claim, correct?

[00:10:25] Speaker 03:
Yes.

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And where have you done that?

[00:10:27] Speaker 01:
OK.

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First, I'm not entirely sure that the law in this circuit requires a showing of prejudice.

[00:10:32] Speaker 03:
I was just relying on the cases that you cite.

[00:10:35] Speaker 01:
OK.

[00:10:36] Speaker 01:
But Your Honor.

[00:10:36] Speaker 03:
Don't you cite those cases?

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I suspect I did.

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I'll rely on the court's statement.

[00:10:43] Speaker 01:
Your Honor, the prejudice is clear.

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By interfering with Mr. Skrinikov's

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ability to come back to work.

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By barring him from returning to work, Fannie Mae caused him to exceed, to stay out after his leave period had expired, and therefore he was susceptible of termination or failure to return at the end of his FMLA leave period.

[00:11:19] Speaker 03:
Okay, thank you.

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Thank you.

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We'll hear from counsel for Fannie Mae.

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May it please the court.

[00:11:41] Speaker 02:
Fannie Mae gave Mr. Scrooge and Kyle all he was entitled to under federal and D.C.

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The only entitlement with which Fannie Mae allegedly interfered is Mr. Skrinikov's right to return from protected leave in the period from October 26 to 29, 2009.

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This interference claim fails for two independent reasons.

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First, the record shows that Mr. Skrinikov was trying to stay out of work until November.

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Second, PC law imposes none of the procedural requirements that Fannie Mae allegedly violated.

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Because the first argument is factual, I'd note at the outset Mr. Skrinikov's agreement on page four of his report that none of the facts on which the District Court relied in its opinion are disputed.

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And this includes the fact that Mr. Skrinikov went to an urgent care facility and specifically asked for a note allowing him to stay out of work until November 2nd, even though he had already been told by an emergency that he was medically fit for duty as soon as October 16th.

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The district court concludes it.

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I understand his claim.

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He wasn't trying to get further medical leave.

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He just wanted to take vacation.

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And so he's done with his medical leave and he just says, I'm uncomfortable.

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Yeah, it could work.

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I'm uncomfortable because I have broken ribs and I have accrued medical leave.

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And just in my life, I just rather use that now.

[00:13:08] Speaker 04:
And then there's this sort of,

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you know, jerking him around a bit on whether he needs a separate fitness for duty relating to the ribs.

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And that ends up without telling him during this whole process, actually we're limiting your job and actually you don't need to justify taking your vacation time.

[00:13:29] Speaker 04:
I mean, it seems like it really wasn't unprofessional at least.

[00:13:34] Speaker 04:
How can you explain how Fannie Mae conducted this

[00:13:38] Speaker 02:
Your honor, I'd like to respond in two ways.

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First, Fannie Mae did tell Mr. Skrinikoff how he could obtain the vacation time if he wanted to continue pursuing that route.

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Talk to the manager.

[00:13:48] Speaker 02:
Yes, exactly.

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Speak with the manager.

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And it's undisputed that he didn't continue to pursue that.

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Second, the district court found, and I believe it's undisputed, that Fannie Mae required a return to work certification pursuant to its standard policy and practice acting out of a concern about

[00:14:08] Speaker 02:
that when people come back to the workplace after expressing medical concern, that it's safe for them and for other employees.

[00:14:16] Speaker 02:
The record also shows that- After expressing medical concern?

[00:14:22] Speaker 04:
Like, that's if you're taking medical leave, isn't it?

[00:14:25] Speaker 02:
Your Honor, an employee doesn't have to expressly invoke the FMLA or the DC FMLA.

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If they're seeking medical leave in terms or not.

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But here, he made clear he wasn't seeking medical leave.

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was seeking vacation time.

[00:14:41] Speaker 02:
Yeah, I think initially vacation was the possibility that he put out there when he raised that he wanted time out of work for medical reasons.

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Fannie Mae understood that it had an obligation to determine whether he was entitled to medical leave and on the other hand, whether he was safe to return to work.

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They didn't want to prevent him

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from taking advantage of the rights to which she's entitled under statute or under the company's short-term disability policy and burden vacation time unnecessarily if that was an option that was available to her.

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Let me just say, here's one way of reading the record, potentially.

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You tell me why I'm wrong, okay?

[00:15:29] Speaker 05:
Mr. Skrinikoff.

[00:15:32] Speaker 05:
So all the problems started when he, taking the facts in light most favorable to him, wanted to be the truth teller and was concerned that a supervisor wasn't.

[00:15:44] Speaker 05:
That he was shunted off into taking leave, some kind of formal leave when he just wanted to use his vacation time by Fannie Mae.

[00:15:56] Speaker 05:
Fannie Mae, and this is in the record, a whole read group

[00:16:00] Speaker 05:
the special case, special scrutiny, look at him, his claims, you know, with an exacting eye.

[00:16:08] Speaker 05:
Fannie Mae interfered with and overrode Fannie, regrouped judgments in a way that it hadn't traditionally and seemed to be imposing a bunch of ad hoc requirements.

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And there's a very short time between the end of protected leave and termination.

[00:16:29] Speaker 05:
Why isn't that enough to meet a summary judgment?

[00:16:34] Speaker 02:
There are several parts of that question, and I'll try to respond in three parts.

[00:16:39] Speaker 02:
As for the origin of this issue being Mr. Suenkov's desire to ensure that the truth is told to the Senate in a conflict with his manager over that issue,

[00:16:50] Speaker 02:
First of all, he withdrew the claim with credit.

[00:16:53] Speaker 05:
I'm not saying it's a false claim.

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I'm talking about the record here that Fannie Mae had reason to be irritated with him, to want to get rid of him, be upset with him, to give him special scrutiny, not in a positive way.

[00:17:08] Speaker 05:
So I'm not asserting a false claim that doesn't respond to what I'm saying here is the summary judgment evidence that he's come forward with.

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Why isn't that enough to defeat

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Fannie Mae's claim for summary judge.

[00:17:23] Speaker 02:
As to the merits of the truth-telling issue, the contemporaneous record, including Mr. Kunikov's notes from the April 28th meeting where he discusses with the manager the complaints that he submitted to Fannie Mae's ethics and compliance.

[00:17:41] Speaker 02:
All the contemporaneous records say nothing about what was being reported to the Senate.

[00:17:45] Speaker 02:
He actually complained that he's being discriminated against.

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on the basis of national origin, which is a claim he chose not to pursue further.

[00:17:53] Speaker 02:
It's undisputed that his responsibilities have been automated.

[00:17:58] Speaker 02:
I think trying to read in an alternate reason for his termination is not supported.

[00:18:04] Speaker 05:
Why does it matter that this position was automated?

[00:18:07] Speaker 05:
Because the Family Medical Leave Act doesn't require reinstatement to the exact position, as long as it's sort of an equivalent position.

[00:18:18] Speaker 05:
there's no answer to the duty to reinstate him.

[00:18:21] Speaker 02:
Yeah, as to that, I think you're right.

[00:18:24] Speaker 02:
The record doesn't address if Mrs. Gwinnikov agreed this could be decided on summary judgment.

[00:18:30] Speaker 02:
The record as it's been developed doesn't address the existence of equivalent roles.

[00:18:36] Speaker 05:
I think that's- Whose burden was it to show that there was not a role to which he could be returned?

[00:18:42] Speaker 05:
Because Fannie Mae just says, well, we automated yours.

[00:18:47] Speaker 05:
How is, do you have a case or something to help me understand how that is sufficient or responsive under statutory requirements that simply be that he be restored to an equivalent, the same or equivalent position?

[00:19:00] Speaker 02:
You're not, I don't standing here today.

[00:19:02] Speaker 05:
Don't you have to have that?

[00:19:03] Speaker 02:
No, I don't think so.

[00:19:05] Speaker 02:
Because the record shows that the Mr. Skrinigot was terminated after his leave was exhausted.

[00:19:14] Speaker 05:
Sure, but if we've had an opinion that says, as long as you wait 24 hours after they come back to work or 48 hours and then terminate them, then we're good with that.

[00:19:26] Speaker 05:
And you can terminate them because they can't go to the exact position, even though that's not the test on their Family Medical Leave Act.

[00:19:32] Speaker 05:
That would seem to really gut

[00:19:35] Speaker 05:
the, I'm just using collectively the two FMLA's similar requirements of restoration to an equivalent position to simply say, we can just get rid of the one position and just wait 48 hours.

[00:19:47] Speaker 02:
Your honor, I think this maybe brings us back to two other parts of your initial question.

[00:19:52] Speaker 02:
You mentioned the language about the high level of scrutiny, the special case and the sensitive case.

[00:19:57] Speaker 02:
If you look at the record at pages 501, 503, also 639 to 40 of the joint appendix,

[00:20:05] Speaker 02:
What you see is undisputed testimony.

[00:20:08] Speaker 02:
The term special case and sensitive case were used to refer to a situation where the company thought there was actually a chance that the medical leave might be exhausted.

[00:20:20] Speaker 02:
And the reason to apply high scrutiny is to make sure... That's not undisputed.

[00:20:24] Speaker 05:
The factual used to be drawn from those emails is not remotely undisputed.

[00:20:28] Speaker 05:
He has a very different reading.

[00:20:30] Speaker 05:
of what that meant.

[00:20:31] Speaker 05:
You're not telling me that's undisputed, are you?

[00:20:34] Speaker 02:
There's no controverting evidence.

[00:20:37] Speaker 02:
I agree, it has a different read.

[00:20:39] Speaker 05:
What evidence did you put into the record that that's what special scrutiny meant?

[00:20:46] Speaker 05:
Did you have a declaration or testimony or something like that?

[00:20:50] Speaker 02:
I mean, it's testimony of the arbitration, the joint appendix actations that are provided.

[00:20:58] Speaker 02:
Then turning to

[00:21:03] Speaker 02:
Give me just one moment.

[00:21:07] Speaker 02:
You mentioned the ad hoc requirements and the district court did determine that the requirements Fannie Mae imposed were pursuant to their standing policy.

[00:21:18] Speaker 02:
The policies in the record indicate that Fannie Mae required an employee who raises a medical concern.

[00:21:31] Speaker 02:
to be referred to regroup for evaluation.

[00:21:36] Speaker 02:
This was something which applied across the board.

[00:21:38] Speaker 02:
It was not expressly used to target Mr. Skrinikov in any special way.

[00:21:44] Speaker 02:
Your honor, to see my time is up.

[00:21:46] Speaker 03:
Anything else?

[00:21:48] Speaker 03:
Okay, thank you.

[00:21:48] Speaker 03:
Thank you, Your Honor.

[00:21:51] Speaker 03:
Let's see.

[00:21:52] Speaker 03:
Mr. Soud, I think you were out of time, but we'll give you two minutes if you'd like.

[00:21:58] Speaker 01:
Thank you, Your Honor.

[00:22:00] Speaker 01:
I don't know any lawyer who would not like.

[00:22:03] Speaker 03:
Well, sometimes they say they don't first.

[00:22:05] Speaker 01:
I'm happy to talk.

[00:22:07] Speaker 01:
Two minutes, two minutes.

[00:22:09] Speaker 01:
There are a couple of points that I that I'd like to make in reply.

[00:22:13] Speaker 01:
First, anybody says when we learned that Mr. Skrinikov had a rib injury, we had a duty to do something about it.

[00:22:27] Speaker 01:
Perhaps so.

[00:22:28] Speaker 01:
Perhaps so, if we presume that to be true, that duty does not include abridging FMLA rights.

[00:22:36] Speaker 01:
The policy says we refer the regroup.

[00:22:41] Speaker 01:
He went to the regroup and the regroup sent him away saying, no, no, you're fine.

[00:22:46] Speaker 01:
You don't need anything else.

[00:22:48] Speaker 01:
And then they overruled the regroup.

[00:22:51] Speaker 01:
Now that overruling is particularly telling because the

[00:22:57] Speaker 01:
undisputed testimony, was that the regroup's job was to make final determinations regarding belief.

[00:23:04] Speaker 01:
Final determinations, not recommendations, not suggestions.

[00:23:08] Speaker 01:
Final determinations.

[00:23:10] Speaker 01:
So Fannie Mae's overruling of the regroup on several occasions and frequently accompanied by what I can describe only as nonsensical explanations is

[00:23:27] Speaker 01:
evidence of mendacity and also shows that there wasn't a legitimate basis for rejecting Mr. Skrinikov's return on that basis.

[00:23:39] Speaker 05:
I just have one thing I want to make clear here or to make sure I understand clearly here.

[00:23:46] Speaker 05:
The relief you want from this court is to direct the entry of summary judgment in your favor.

[00:23:54] Speaker 05:
Is that your argument or is it that, no, we need to go back and have a trial?

[00:23:58] Speaker 05:
There's clearly disputed facts here that are relevant.

[00:24:01] Speaker 01:
I think that the only way to read the facts in this case is in Mr. Skrinikov's favor.

[00:24:07] Speaker 01:
I do believe that it was error not to grant summary judgment because none of the facts that are in dispute

[00:24:15] Speaker 01:
the extent that either the facts themselves or maybe the read from the facts are in dispute are material.

[00:24:22] Speaker 05:
That's what you're seeking.

[00:24:23] Speaker 05:
You're not seeking.

[00:24:25] Speaker 01:
Well, obviously I'll take what I can get.

[00:24:27] Speaker 05:
Well, you had your trial thing and you said you wanted summary judgment instead.

[00:24:29] Speaker 05:
So that's what I'm just trying to understand.

[00:24:31] Speaker 05:
So your burden on this appeal is to show that the district court erred in not granting summary judgment for you on this record.

[00:24:37] Speaker 01:
Yes, Your Honor.

[00:24:38] Speaker 01:
I believe that the district court erred both in granting summary judgment to Fannie Mae

[00:24:43] Speaker 01:
And if that's as far as this court goes, then it would be a return for a new proceeding.

[00:24:50] Speaker 01:
Perhaps if this court believes that there are facts in dispute, then the proceeding would have to be a trial before a jury instead of on the papers.

[00:24:59] Speaker 01:
If this court agrees with me that there's no inter-read the facts in this case other than in Mr. Skrinikov's favor, then this court should grant summary judgment to Mr. Skrinikov.

[00:25:09] Speaker 04:
So, Mr. Salm, you said you thought there was no record evidence

[00:25:13] Speaker 04:
that the job had been automated.

[00:25:16] Speaker 04:
And I'm looking at the any maze even of material facts, not in dispute where they say by the third quarter or so of 2009, the work was fully automated, primarily fully automated.

[00:25:31] Speaker 04:
And I don't take Mr. Skrinikowsky

[00:25:37] Speaker 04:
corresponding statement of material facts not in dispute to take issue with that, just says he doesn't think it's relevant.

[00:25:43] Speaker 04:
And I just, I don't see how it could be not relevant if there's a legitimate independent reason.

[00:25:51] Speaker 04:
And as you acknowledge in your primary argument, of course the employer retains the prerogative to let an employee go, they no longer need the employee.

[00:26:03] Speaker 04:
So what is your position in light of, at least in my reading, the fact that there is evidence in the record fully automated the job?

[00:26:13] Speaker 01:
Oh, there are a few points, Your Honor.

[00:26:16] Speaker 01:
First, I don't think it's fair to say that that issue is responsive to the gravamen of our complaint.

[00:26:26] Speaker 01:
Our complaint is that Fannie Mae interfered with Mr. Skritikov's return to work.

[00:26:32] Speaker 01:
He wants to come back.

[00:26:33] Speaker 01:
They say, no, first you need to provide this.

[00:26:36] Speaker 04:
Right.

[00:26:36] Speaker 04:
And no granting everything you say.

[00:26:38] Speaker 04:
You're right.

[00:26:39] Speaker 04:
Everything you say, but independently, the job has evaporated and Mr. Skrinikoff has never said, what about another job?

[00:26:50] Speaker 04:
I want to come back to another job.

[00:26:53] Speaker 04:
Then what is his, how does he clear that hurdle that for reasons unrelated,

[00:27:01] Speaker 04:
to his leave, his being let go.

[00:27:04] Speaker 01:
I think one of the issues and part of the reason I'm sort of struggling with this is that this statement that his job had been eliminated was entirely post hoc.

[00:27:15] Speaker 01:
That occurred, that issue, that factual assertion arose only at the mediation.

[00:27:25] Speaker 04:
This is not an intent

[00:27:28] Speaker 04:
case, the way you've litigated it, it's an interference case.

[00:27:32] Speaker 04:
So I'm not sure the posthogness matter.

[00:27:34] Speaker 01:
I think it does.

[00:27:35] Speaker 04:
Why?

[00:27:36] Speaker 01:
Because when they state throughout the period where they're tussling, Mr. Skrinikoff, you need to provide a fitness for duty certification.

[00:27:48] Speaker 01:
Reed Group says, no, you don't.

[00:27:50] Speaker 01:
You're fine.

[00:27:51] Speaker 01:
You're clear to go back.

[00:27:52] Speaker 01:
Penny May says, oh, no, no, we're going to overrule.

[00:27:55] Speaker 01:
In fact, they lie.

[00:27:56] Speaker 01:
They said,

[00:27:57] Speaker 01:
No, no, the regroup says you do need a return to work certification.

[00:28:03] Speaker 01:
So then they direct the regroup to demand that.

[00:28:06] Speaker 01:
And we have this back and forth, which, as you can imagine, I'd love to go through and endlessly and share with you, but you've read it in the briefs.

[00:28:14] Speaker 01:
There's this long back and forth, never once does Fannie Mae say a word about his job

[00:28:25] Speaker 01:
having been eliminated about him no longer being needed.

[00:28:28] Speaker 01:
This issue arose when Fannie Mae was looking for a defense after the fact.

[00:28:37] Speaker 01:
And it is simply, it is simply a post hoc rationalization.

[00:28:46] Speaker 01:
Thank you.

[00:28:49] Speaker 03:
Thank you gentlemen.

[00:28:50] Speaker 03:
The case is submitted.