Denied promotion=FMLA retaliation


Michael was the best in his class, consistently exceeded in his performance evaluations, and was the top candidate for promotion. Things began to go awry, however, when he took FMLA leave to care for his wife who had just given birth. Some issues regarding his use of sick leave cropped up, and Michael tried to explain, in not the kindest way, that he wasn’t taking bonding leave (during which sick leave was not available) as much as he was taking time off to care for his wife, who had a life-threatening complication.Denied Promotion

Despite this, Michael received a letter indicating that his accrued sick leave was not available, but the time off was designated as FMLA leave and would be counted against his vacation or other paid time off. Michael was unhappy with the FMLA designation and insisted that he was using sick leave in accordance with the applicable collective bargaining agreement (CBA). He wanted to save his unpaid FMLA leave for later. He was subsequently informed that he could use sick leave, but the time off would still be counted as FMLA leave.

About a month later, Michael was interviewed for a promotion. He was questioned about his use of FMLA leave and criticized about how he handled the situation, since he pressed for sick leave. He was passed over for the promotion, and his FMLA leave was noted as the reason(!). About six weeks later he was interviewed for another promotion, and was denied; again, his FMLA leave was discussed. This happened a third time, about a month later.

Being unhappy about the promotion denials, Michael sued, in part arguing that the employer failed to honor his CBA rights to take paid sick leave separately from FMLA leave. The court, however, found that the CBA said nothing about whether sick leave was to be run concurrently with FMLA leave. Since the FMLA allows employees to use accrued paid sick leave for otherwise unpaid FMLA leave, the employer violated the FMLA by initially denied Michael the use of his sick leave.

The brunt of the suit, however, involved the promotions. Michael argued that he was passed over for promotion because of his opposition to the employer’s FMLA policy, particularly when, at his first promotion interview, he sent an inflammatory email to HR regarding his FMLA, and that another superior told him on shortly thereafter “It wasn't the fight, but the way you went about it [the FMLA leave] that has caused problems.” Others involved in the promotion decision pointed to incidents where Michael seemed argumentative when he asked for clarification on a point.

The court found that the evidence offered by the employer to show a legitimate reason for the decision not to promote Michael — his emails to HR personnel over the FMLA issue — were not particularly inflammatory. There was no profanity or insulting language in them. They could at worst be described as stubborn. Although the tone was one of frustration and protest, that was, of course, the nature of activity in opposition to his perceived rights violations.

Generally, the court felt that, because Michael’s tackled his issues regarding his use of sick leave with the company resulted in his being passed over for the promotion, the promotion denials could be seen as retaliation.

Browett v. City of Reno, U.S. District Court, D. Nevada, 3:16-cv-00181, February 17, 2017 


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