Demoting employee after FMLA leave — bad idea, says court


Despite job performances issues, timing was questionable

Kathleen worked for the town where she was an executive assistant to the first selectman (i.e., town board official). About 10 years later, a new official, Robert, took over the role of first selectman.

Job performance complaints

Soon Robert began to complain about Kathleen's job performance to Joyce in the HR department. By the end of the year, Robert told Joyce that he wanted to replace Kathleen.

Employee takes FMLA leave

In mid-March of the next year, Kathleen took leave under the Family and Medical Leave Act (FMLA) to care for her son. Kathleen returned to work part-time on May 4, and her last day of FMLA leave was May 20.

When she returned to work on May 4, Robert told Kathleen that he wanted to change the nature of the executive assistant position and fill the role with someone who had a different skill set. He didn't, however, identify the desired job skills.

Employee sued

In a few months, Robert and Joyce found an alternative, albeit part-time, position for Kathleen, and she took it. She subsequently sued, however, arguing that the employer retaliated against her for taking FMLA leave by demoting her.

The employer argued that it had a legitimate, nonretaliatory reason for removing Kathleen — her performance. Kathleen, however, succeeded in raising genuine issues of fact as to whether the employer's reason was pretextual (i.e., false reasoning).

Court sided with employee

The court found that Kathleen's return from FMLA leave coinciding with her demotion on the same day was enough to establish a retaliation claim.

The employer claimed that the position change actually happened months later, and that this was not enough to create a link between a protected activity (leave) and an adverse employment action (demotion).

The court indicated that this is not a bright line rule. The fact that the day she returned from leave, Robert told Kathleen that he intended to replace her, even if the replacement didn't occur for a while, was enough to support Kathleen's argument that her demotion was related to her FMLA leave.

While the employer was unhappy with Kathleen's job performance even before she took FMLA leave, it had no documentation of it, and Kathleen denied it in court. Therefore, Kathleen successfully argued that the reason the employer gave for the demotion was not genuine.

Peterson v. Town of Waterford, District of Connecticut, No. 3:21-CV-332, March 31, 2023.

Key to Remember: Employers should avoid pointing out an upcoming demotion when an employee just returns from leave, even if the demotion doesn't happen for months.

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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