In Lewis v. School District #70, No. 05-CV-776-WDS, 2006 U.S. Dist. LEXIS 86032 (S.D.Ill. Nov. 28, 2006), Ms. Lewis alleged that the defendants discriminated against her by transferring her in retaliation for requesting and taking FMLA leave. The Court defined the issue as whether plaintiff's transfer from the bookkeeper position to the teacher's assistant position was motivated by an impermissible retaliatory or discriminatory animus. Absent direct evidence of discrimination, the court applied the burden shifting framework of McDonnell Douglas. Under that scheme to survive a motion for summary judgment, Plaintiff must establish that: (1) she engaged in protected conduct; (2) the defendant's took adverse action; and (3) there is a casual connection between plaintiff's exercising her FMLA rights and her transfer.
Here, the court found that Lewis met the first two elements of the prima facie case: she engaged in protected activity by taking intermittent FMLA leave and suffered an adverse action, her transfer to a lower paid position. The Court found that Lewis was unable to establish a casual connection between her exercise of FMLA rights and her transfer. The Court observed that a connection can "only be shown by a demonstration that defendants would not have transferred plaintiff to the teacher's assistance position but for her engaging in protected activity under the FMLA."
The Court noted that Lewis originally started taking intermittent FMLA leave in her position as bookkeeper. It was only when the superintendent and board of education determined that plaintiff was no longer performing her bookkeeping duties satisfactorily that it was decided she needed to be reassigned to another position. The record showed that plaintiff made the following errors before she was transferred:
- The school principal was underpaid
- Federal and local grant money received by the school district was delayed because plaintiff failed to prepare the requisite reports;
- Plaintiff failed to prepare the financial report for the October 2004 board meeting;
- Plaintiff repeatedly failed to pay bills on time;
- Plaintiff failed to properly handle a dispute regarding an employee's s retirement benefits;
- Plaintiff failed to correct a known discrepancy regarding an employee's sick leave benefits;
- Plaintiff erred in preparing employees' paychecks;
- Plaintiff failed to timely deliver employees' 2004 W-2 forms;
- The School District received notice from the IRS that it was imposing a $163,000 fine for failure to file the employees' W-2 statements on time;and
- Plaintiff improperly withheld Medicare payments from the paychecks of three employees even those employees had elected not to participate in Medicare.
The Court noted that the above-identified problems were not related to absenteeism. Plaintiff simply was no performing the bookkeeping function adequately even when she was at work. Because plaintiff could not demonstrate that defendants would not have transferred her to the teachers' assistant position but for her engaging in protected activity under the FMLA, the Court awarded summary judgment to the School dismissing the complaint.
Comment: The use of intermittent FMLA leave does not protected an employee from the consequences of their performance while working. If an employee fails to adequately perform their job they may be subject to adverse action just as if the employee had not taken FMLA leave. Note that the FMLA does not require an employer to reduce an employee's workload while the employee takes intermittent FMLA leave.
The decision is relevant to the anti-retaliaton provisions of all federal sector variants of the FMLA.