Case: Boss’ response to complaint too ambiguous to be retaliation


It could have referred to employee not following appropriate steps

While employers risk claims if they retaliate against employees for pointing out that the employer violated a law (including the FMLA), not all actions rise to the level of retaliation. In one case, a manager's response to an employee's complaint regarding a pregnant employee's leave was not enough.

Case in point

Irene had a leadership role at the company, which was starting a new, large project. In a meeting, Irene indicated that Margaret was going to spearhead the project. John, Irene's boss, however, indicated to Margaret that he didn't see how she could be the project champion because of her impending family event. John decided that Simon, another employee would lead the project.

The next day, Irene emailed John to let him know that she was unhappy about the way he treated Margaret. Irene also told John that, after the meeting, she told Margaret she would lead the project, and that she or Simon could fill in while Margaret was on leave.

John responded to Irene, saying "Confronted with the same situation my approach would have been to discuss this with my leader and then take a revised recommendation back to the person impacted if a change of direction was agreed as the result of that discussion. Acting in the way that you did sets a tone that you have the final decision in this matter."

After that, things went downhill for Irene. She received a negative rating for a performance review (based on her leadership). The company was also going through some changes, and Irene was denied a new position, her role was eliminated, and a new role was not found for her.

In response to the negative performance review, Irene said she would actively incorporate changes to her leadership style.

Employee sues

Because of those changes and her performance, Irene was terminated, and she sued, claiming that John retaliated against her because she complained about how he had treated Margaret.

In court, the company argued that John's response was in relation to Irene's leadership style, and that other employees were more experienced for the other positions. Therefore, it had a legitimate reason for terminating Irene.

Employer wins

The court sided with the employer, indicating that John's response could not "fairly be said to directly reflect the alleged unlawful basis for the…" termination and that it could reflect either an objection to the approach Irene took in raising her concerns, or to her complaint itself. Irene also failed to establish that the company's reasoning for terminating her was pretextual.

The court even pointed out that, in response to her performance review, Irene had indicated that she appreciated the feedback and would incorporate it, as evidence that she agreed with John's assessment.

Key to remember: Manager comments can, and often do, subject employers to the risk of FMLA claims. This manager's comments were not specific enough to be retaliation, but employers benefit from ensuring that all managers know what not to say.

Laurora v. Bayer Corp, et al., Third Circuit Court of Appeals, No. 21-2764, September 7, 2022.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


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