Employer lost FMLA court case despite (in its mind) just cause due to harassment


No hard-and-fast rules on timing between FMLA leave and termination

After working for the employer for about three years, Cathryn was diagnosed with breast cancer and began treatment. She requested and received an accommodation for intermittent, unpaid leave under the Americans with Disabilities Act (ADA). The employer granted this accommodation for at least a year.

Employee sharing photos leads to harassment claim

In mid-2020, Cathryn took six weeks of leave under the Family and Medical Leave Act (FMLA) for a double mastectomy surgery, even though she was approved for eight. She claimed that a coworker, Samantha, asked her to return early.

Later that year, Cathryn asked to work from home when needed, and the employer indicated they would accommodate to the degree possible. The employer asked her to notify them of planned absences.

During this time, Cathryn sent photos of the result of her surgery to April, who was a coworker, her nurse, a friend, and a subordinate. The photos, however, made April uncomfortable, and she thought they were inappropriate; she complained to HR.

Meanwhile, Cathryn also requested more leave for her upcoming hysterectomy surgery in December.

HR investigates, terminates — employee sues

HR investigated April's complaint and determined that Cathryn had harassed April, causing April to work in an unsafe work environment. Based on this, in October, the company fired Cathryn in violation of the company's anti-harassment policy.

Cathryn sued, arguing that the employer retaliated against her for asking for and taking leave because of her conditions, and that she was told to come back early from her cancer leave. The employer indicated that Cathryn came back early because she said she was bored.

The employer further argued that there was no connection between Cathryn's FMLA leave from July to August and her termination over two months after she returned to work. It indicated that the sole reason for the termination was Cathryn's violation of the company's anti-harassment policy.

Employer loses in court

In finding for the employee, the court indicated that a reasonable jury could assume a link between Cathryn's protected activity of taking FMLA leave from July to August and her termination in October — two and a half months later.

The court said there are no hard-and-fast rules to determine how much of a gap in time should occur between the protected activity and adverse employment action.

Leggio v. Ochsner Clinic Foundation, Eastern District of Louisiana, No. 2:220cv-01232, April 14, 2023.

Key to Remember: Even if employees are terminated months after returning from FMLA leave, employers might still be on the hook for retaliation. This employer argued a legitimate reason for termination but still lost.

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.


The J. J. Keller LEAVE MANAGER service is your business resource for tracking employee leave and ensuring compliance with the latest Federal and State FMLA and leave requirements.