Putting a pacifier in a toolbox was FMLA harassment, court ruled


Employer shirked duty to protect employee

Todd worked as a diesel mechanic for over 18 years. In January 2020, he told Jeffrey, his supervisor, that he might need to take leave under the Family and Medical Leave Act (FMLA) at some point to care for his son, who suffered from liver disease.

Harassment began

After that discussion, Todd began to experience what he felt was “harassment and disparate treatment” at work. On one occasion, for example, his coworkers placed a pacifier in his toolbox to insinuate that he was a “baby” for considering FMLA leave.

In March, several of Todd’s coworkers told him that their equipment manager intended to get Todd fired before the end of the summer by falsely alleging sexual harassment against him.

Harassment reported

While reporting the harassment to Jeffrey, other employees yelled out “rat.” Jeffrey took no action to address the report. Jeffrey also shirked his leadership duties by not applying company policies and disciplining the employees for the name-calling. Todd also reported the harassment to Melissa in the HR office, who also violated company policy by failing to investigate the report.

Fast forward to early June, when Todd became sick but was nonetheless given “excessive job duties, well outside his normal position,” and a “routine sheet of tasks to complete and sign off on to keep track of [his] work performance.”

On June 8, at the direction of the equipment manager, Jeffrey and others filed a false sexual harassment report against Todd. That same day, Todd began FMLA leave due to his illness, and was thereafter hospitalized for several days.

Released for duty

On July 30, Todd got a call from an HR assistant who told him that they had received a fax from his doctor clearing him for “full work duties,” and therefore he was required to use vacation time for work he had missed since being cleared. Prior to receiving the call from HR, however, Todd was unaware that his doctor had medically approved his return to work.


When Todd returned to work the following day, Jeffrey immediately directed him to a meeting where the sexual harassment allegations were filed against him. Those in the meeting told Todd that the company was going to conduct a disciplinary hearing, but gave Todd only two minutes to discuss the allegations with his union representative before the hearing began. Upon its conclusion, Todd was immediately suspended and thereafter terminated.

Todd filed suit, arguing that the company retaliated against him for taking FMLA leave.

Court finding

The court found that Todd successfully illustrated both a pattern of antagonism as well as an unusually suggestive closeness in time between his FMLA leave and his termination. This was enough to show that they were connected.

The court indicated that Jeffrey and the equipment manager played a role in the plan to get Todd fired in retaliation for Todd’s asking for FMLA leave. The court, therefore, could hold them personally liable.

Hershey v. The Pennsylvania Department of Transportation, Middle District of Pennsylvania, No. 1:21-cv-0506, September 29, 2023.

Key to Remember:The FMLA protects employees from harassment based on employees asking for, or taking, FMLA leave. Employers must put a stop to any reported harassment.

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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