The Federal Sector FMLA Blog

Asking Employee on FMLA Leave to Return to Work Did Not Interefere or "Chill" Employee's Rights

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.   

Delay in Processing FMLA Leave Request Interfered with FMLA Even Though Employee Was Never Denied Leave During the Interim and Was Ultimately Granted FMLA Leave

An employer's failure to provide the forms required by the company to request FMLA leave for several months despite repeated requests by the employee interfered with the employee's FMLA rights by discouraging the employee from taking FMLA leave, even though the employee was allowed to take leave while she waited for the forms and was ultimately granted FMLA leave.   

Encouraging Employee to Pursue Options Other Than FMLA Leave "Chilled" Employee's FMLA Rights Even Though Employee Took Leave

In Grosso v. Federal Express Corp., No 05-6128, 2006 U.S. Dist. LEXIS 91604 (E.D.Pa. Dec. 19, 2006), the court addressed whether an employee may bring a claim of FMLA interference for actions that could chill the employee's desire to take FMLA leave, even where the employee takes the leave.  The Court concluded that the FMLA permitted such a claim, and that Grosso had established sufficient facts to support his interference claim to preclude awarding summary judgment to the employer.

Grosso worked as a driver for Federal Express.  He alleged that Federal Express interfered with his rights under the FMLA by discouraging him from taking FMLA leave to periodically care for his father, who suffered from a heart condition and Alzheimer's.  He was not denied FMLA leave. 

Plaintiff claimed that management told him that he was taking too much FMLA leave and that he needed to come back to work; that it was not fair to plaintiff's co-workers that plaintiff took FMLA leave whenever he had leave available; and that plaintiff should put his father in a nursing home or obtain nursing care at home.  Additionally, Federal Express required plaintiff to sign a "day of decision letter" in which he agreed to make arrangements as soon as he could to accommodate the needs of his father and that he will work to get home care nursing so that he did not have to take time off whenever possible. 

The Court initially concluded, based on a review of the case law, that an employee could maintain a claim of interference even though the employee took FMLA leave based on the actions of an employer that chilled the employee's desire to exercise their right to take FMLA leave.  The Court went on to find that Grosso had produced sufficient evidence that suggested that Federal Express had taken actions to discourage Grosso's use of FMLA leave sufficient to preclude summary judgment for the employer.  The Court cited the language of the day of decision letter and alleged statements as evidence that Federal Express discouraged Grosso from taking FMLA leave by encouraging him to pursue other options, such as placing his father in a nursing home or obtaining in-home nursing care.

Comment:  At minimum, employers who want to avoid the double whammy of both granting FMLA leave and being sued for substantial monetary liability for "chilling" employee FMLA rights should train their managers and supervisors to keep their adverse opinions about an employee's exercise of those rights to themselves.  Employers should also implement coverage systems that take into account an employee's absence on FMLA leave.  Lower level managers and supervisors get into the kind of trouble that occurred in Grosso because of the absence of a system to alleviate the resulting operational pressures brought to bear caused by the employee's FMLA absence.