In Whitaker v. Electronic Data Systems Corp., No. 3:05-CV-473-S, 2007 U.S. Dist. LEXIS 48658 (W.D. Ky. July 3, 2007), the employee alleged interference with his FMLA rights based on repeated phone calls from his supervisors during FMLA leave telling him to return to work. Whitaker alleged that the calls discouraged him from using FMLA leave, which is prohibited by 29 CFR 825.220(b). The court disagreed. According to the court:
Merely asking someone to return to work, however, does not amount to discouragement from taking leave. In order for Defendants to have discouraged Whitaker from taking FMLA leave, they must have provided a "power disincentive for taking FMLA leave." Coleman v. Blue Cross Blue Shield of Kan., No. 05-4149-JAR, 2007 WL 218903, at *2 (10th Cir. April 15, 1999).
As an example of a "power disincentive,"the court cited another case wherein the employer made repeated calls to the employee on FMLA leave culminating in a threat of termination if the employee did not return to work.
Here, in contrast, the court noted that the Defendants did not suggest any type of consequence if Whitaker refused to return to work. In fact, Whitaker did not claim he refused to return to work and actually admitted that, while on FMLA leave, he requested to return to work as soon as possible. Whitaker, the court concluded, was denied nothing.
Comment: The decision raises the bar on what is required to establish an interference claim based on employer actions that allegedly "chill" or discourage an employee from taking FMLA leave. Some courts will want to see fairly explicit evidence of a threat for an employee's exercise of FMLA rights. Other courts have set a relatively low standard, at least for purposes of summary judgment (where all inferences are drawn in favor of the non-moving party-usually the employee). For these courts, repeated calls during leave with instructions to return to work while, as in Whitaker, an employee is on an attendance control plan with the very real prospect of discipline for attendance violations, would likely tip the balance in favor of a finding of interference that discourages an employee for exercising their right to FMLA leave.