FMLA Articles

FMLA retaliation protections continue after leave is exhausted


Supervisor remarks help defeat employer’s argument

Carrie didn’t have the best relationship with Mandy, her supervisor. Carrie took FMLA leave, which eventually turned into a disability claim, and Mandy was instructed to find a temporary replacement. Mandy was none too happy with the situation, and said “now it is a disability? For one month . . . what happened to the two then three months . . . unreal.”

Sharon, the company HR professional, told Carrie to let Mandy know when she would be returning to work. When Carrie did so, Mandy said “from what I understand, you no longer work for this company.” Carrie then spoke with Ginger, a company director about the purported termination. Ginger indicated that no one had told Mandy about a termination, and that Mandy didn’t want Carrie back because Carrie did not reach out to Mandy directly to tell her that she was sick.

When Carrie didn’t return to work on the date expected, Mandy recommended that Carrie be let go for job abandonment. During Carrie’s leave, her department functioned fine, so the company figured Carrie’s position was no longer needed. They proceeded to eliminate it due to budgetary reasons. As a result, Carrie was reassigned when she finally did return to work, to a position without authority or the same advancement opportunities.

Months later, Carrie took FMLA leave again, and was deemed totally disabled for three months. She drove to a different state to live with her mother. The company tried to contact Carrie, but was unable to do so. Carrie was subsequently terminated for job abandonment, and she sued.

The employer argued that the termination was for job abandonment, a legitimate reason, particularly since Carrie’s FMLA leave had been exhausted. The employee argued that this reason was pretext for retaliation because she took FMLA leave, particularly given the short time between her leave and the termination.

The court found that the employer’s argument did not cut the muster. An FMLA retaliation claim asks whether the employer was motivated by the plaintiff’s taking of FMLA leave, not whether the employee was entitled to reinstatement, but the defendant refused to reinstate the employee. In other words, an employer may not be obligated to reinstate an employee upon expiration of her FMLA leave, but that does not preclude a finding that the employer was motivated by an unlawful purpose when it transferred or terminated the employee. The supervisor’s remarks also did not help the employer’s case, since they can be seen as retaliatory.

Ottley-Cousin v. MMC Holdings Inc., E.D. NY, No. 16-cv-00577, May 6, 2019 This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc.

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