The Federal Sector FMLA Blog

FMLA Does Not Support Retaliation Claim Based on Association with Employee Who Engaged in Protected Activity

The Fifth Circuit in Elsensohn v. St. Tammany Parish Sheriff's Office, No. 07-30693, 2008 U.S. App. LEXIS 12209 (5th Cir. June 6, 2008) recently addressed whether an employee may sue his employer for retaliation in violation of the FMLA because of his association with his wife, who filed a lawsuit against the same employer alleging violations of the FMLA. 

Lawrence and Wendelle Elsensohn, husband and wife, were both employed by the defendant Sheriff's Office.  Wendelle sued the Sheriff's Office alleging violations of the FMLA.  Lawrence testified that at all times he attempted not to involve himself in his wife's claim except to provide moral support.  If the matter went to trial, however, Lawrence would testify as a witness, a fact known by his superiors in the Sheriff's Office.  

Mrs. Elsensohn settled her lawsuit in October 2004, and subsequently left the Sheriff's Office.  Lawrence remained, where he received excellent job reviews.  Beginning in January 2006, Lawrence applied for several promotions.  He was denied every promotion for which he applied.  He was subsequently told by his supervisor that he would not receive a promotion of any kind.  Lawrence sued after being transferred to a less desirable night shift.  He alleged FMLA interference and retaliation for association with his wife who had opposed Defendant's unlawful practices related to the FMLA.

The Fifth Circuit affirmed the determination of the district court that the FMLA does not permit a spouse to  bring a derivative FMLA claim based solely on the protected activity of the other spouse.  In so finding, the Fifth Circuit noted a split in the courts on this issue involving Title VII, the ADEA, and the ADA.  The Court elected to follow precedent in an ADEA case, where it declined to broaden the anti-retaliation provisions of that statute to permit an employee who has not engaged in protected activity to maintain a retaliation claim based solely on their association with an employee who has engaged in protected activity.  In so finding, the Fifth Circuit noted that the anti-retaliation protections of the ADEA are greater than the protections afforded under the FMLA.  The Court also noted that the plain language of the FMLA does not recognize derivative retaliation claims. 

Comment:  To maintian an FMLA retaliation claim in the Fifth Circuit an employee must actually engage in protected activity.  Protected activity covers any individual who was about to give or has given any information or testimony in any inquiry or proceeding relating to FMLA rights.  Absent engagement in protected activity, a familial or other relationship with another employee who has engaged in protected activity is not enough.    

Given the split in the circuits on this issue, whether an employee will be able to maintain a derivative FMLA retaliation claim may depend on the precedent in that circuit regarding the anti-retaliation provisions of other anti-discrimination statutes. 

Note that the Fifth Circuit also rejected the Elsensohn's claim that he engaged in protected activity because (1) he "was about to give information" in connection with an inquiry on his wife's FMLA case; and (2) but for the fact that his wife's claim settled, he was about to testify hin support of her claim.  The Court found that Mr. Elsensohn did not engage in protected activity, noting that he was never questioned by his employer regarding his wife's claim, he testified that at all times he kept his distance from his wife's claim, and that the alleged retaliatory conduct (the denial of promotions) occurred well after his wife's case had settled.    

The Fifth Circuit covers Texas, Lousiana, and Mississippi.   

Grant of Leave Was Illusory Where Employee Was Required to Perform Full Duties While on Intermittent FMLA Leave

In reversing the award of summary judgment to the employer, the Seventh Circuit in Lewis v. School District #70, No. 06-4435, 2008 U.S. App. LEXIS 8248 (7th Cir. April 17, 2008) cited as evidence of retaliation the School's expectation that Lewis complete all of the duties of her full-time bookkeeping position while she was working on a part-time basis while she used intermittent FMLA leave.  Because she did not meet that expectation, the School permanently removed her from her position.

The court found that a reasonable jury could find that the FMLA leave granted to Ms. Lewis was illusory. 

The School, the court noted, had numerous options consistent with the mandates of the FMLA that did not require Lewis to perform her full-time duties while working part-time.  The School could have: (1) shifted the work to other employees during the time Lewis was taking intermittent FMLA leave; (2) hired part-time help; or (3) transferred her to another position temporarily. 

By holding Lewis to the unrealistic expectation that she should accomplish satisfactorily all of her duties of the bookkeeper position during her period of FMLA-protected intermittent leave, a jury, the court concluded, could find that the School violated the FMLA when it decided to permanently remove her to another position.   

Comment:  An employee on intermittent FMLA leave is required to meet the reasonable expectations of his or her position while at work.  Unrealistic expectations of what an employee can accomplish during the intermittent or reduced leave schedule may be evidence of retaliation for exercising FMLA leave rights sufficient, at least, to defeat an employer's s motion for summary judgment.  Even if it is ultimately decided in favor of the employer, the inability to secure summary judgment makes the case much more expensive for an employer. 

To ensure FMLA compliance, employers should set realistic performance expectations during an employee's use of FMLA leave on an intermittent or reduced leave schedule. 

   

"Cat's Paw" Exception Applies to FMLA Retaliation Claims

In Marzella v. Embarq Florida, Inc., No. 2:05-cv-591-FtM-29SPC. 2007 U.S. Dist. LEXIS 66652 (M.D. Fla. Sept. 10, 2007), the court applied the "cats paw" or "rubber stamp" exception to an FMLA retaliation case.  Generally, to prove retaliation an employee must establish a casual connection between the adverse action and the exercise of FMLA rights.  Courts have held that a casual relationship is not established where the decision maker lacked knowledge of the employee's protected activity.  The "cats paw" or "rubber stamp" exception allows an employee to establish a causal connection even though the decision maker was unaware of the employee's FMLA protected activity. 

Under the cat's paw" theory, causation may be established if the employee shows that the decision maker followed the biased recommendation of another without independently investigating the matter before agreeing to the adverse action.  In that case, the recommender is using the decision maker as a mere conduit, or "cat's paw" to give effect to the recommender's discriminatory animus.

The court sent on to find that the "cat's paw" theory of causation did not apply.  The court noted that the ultimate decision maker (1) was unaware of the employee's FMLA activity; (2) he reviewed the employee's entire disciplinary history; and (3) consulted with the legal department prior to making the decision to terminate Marzella.   

Comment: The applicability of the "cat's paw" theory to FMLA retaliation cases reinforces the need for decision makers to conduct an independent investigation of the facts and evaluation of the propriety of the penalty before imposing discipline recommended by others, particularly those who are directly involved with the dispute with the employee.  Ignorance of the employee's FMLA activity may not be a defense to a decision maker who simply rubber stamps the adverse action of others where those others had discriminatory motives.

Labor and employee advocates will want to closely scrutinize the independence and reasonableness of the investigation conducted by the purportedly unaware and neutral decision maker.  Factors for consideration include the source of the information relied on, the amount of time devoted to the independent investigation, whether witnesses were re-interviewed, and whether the decision maker consulted with counsel or other experts prior to making the adverse action decision at issue.

No Right to Recover Under Title VII, the ADA, or the ADEA for Adverse Actions Taken Against an Employee for Exercising FMLA Rights

In Reed v. Southwestern Bell, No. 4:07CV00525 RWS, 2007 U.S. Dist. LEXIS 33429 (E.D.Mo. May 7, 2007), the court dismissed the pro se plaintiff's Title VII, ADEA, and ADA retaliation claims because the were based on violation of the FMLA.  The employee did not assert violation of the FMLA as a cause of action.  The Court opined:

There is not right to recover under Title VII, the ADEA, or the ADA for adverse actions taken against an employee for exercising rights under the FMLA. Title VII only protects claimants who have suffered adverse employment action as a result of exercising their rights under Title VII, not the FMLA. ... The ADA similarly only protects claimants who have suffered adverse employment action as a result of exercising rights under the ADEA, not the FMLA. 

Comment:  Violation of the FMLA will not always support a claim under another federal anti-discrimination statute.  Of course, if an employer denies FMLA leave based on sex, age, race, national origin, or disability, the employee may be faced with a Title VII, ADEA, and/or ADA claim based on violation of the FMLA.  Retaliation claims are a bit different.  Generally, as suggested by the Court in Reed, retaliation claims are based on the exercise of rights guaranteed only by the particular statute being asserted, and not violations of some other statute.  The lesson is: plead your cases well.   

Employer Counterclaim Can Be Basis of FMLA Retaliation Action

An FMLA retaliation claim can be based on an employer's counter-claim to an employee's FMLA lawsuit.  In McLaughlin v. Innovative Logistics Group, Inc., No. 05-72305, 2007 U.S. Dist. Lexis 22756 (E.D.Mich. March 29, 2007), the employee initially filed suit alleging interference with her FMLA rights.  In response, ILG filed a counter-claim against McLaughlin alleging breach of contract and fraud.  ILG subsequently dismissed the counterclaim.  McLaughlin moved for summary judgment alleging that ILG's filing of the counterclaim constituted retaliation in violation of the FMLA.   

The fraud counterclaim arose out of a wage garnishment action against McLaughlin that ILG paid on to the tune of $ 717.77.  As it turns out, the garnishment was fraudulent.  McLaughlin was an unwitting victim of an attorney's scheme to file multiple suits for garnishment for legal services that were never performed.  At the time, McLaughlin told ILG she did not owe the money and they should not pay.  ILG paid anyway.  The breach of contract counterclaim was base on poor work habits and excessive absences which alleged caused ILG to incur unspecified monetary damages.

McLaughlin argued that the filing of a frivolous or bad faith counter-claim to her FMLA lawsuit constitutes actionable retaliation in violation of the FMLA.  The Court agreed.  Relying on Rosania v. Taco Bell of America, Inc., 303 F.Supp. 2d 878 (N.D.Ohio 2004), the Court found that the anti-discrimination provisions are not limited to adverse employment actions.

Comment: The anti-retaliation provisions of the FMLA prohibit an employer from discriminating against an individual because that individual has "filed any charge, or has instituted or caused to be instituted any proceeding, under or related to" the FMLA. 

Employers sometimes file counter-claims against employees who have sued them.  Mainly this is done to gain leverage for purposes of settlement.  The lesson of McLaughlin is that the decision to take an aggressive posture with an employee who has filed suit by filing a counterclaim is not without considerable risk. 

The is directly applicable to non-civil service federal employees who have a right to sue their employer for FMLA retaliation.  It may be relevant to civil service employees. Although civil service employees do not have a right to sue an employer, they may be able to assert a retaliation claim for other retaliatory action taken by an employer after the employee has filed a grievance or MSPB appeal involving the FMLA. 

Retalation Claim Not Available for Employee Who Creats a Fictional Reason for Taking Leave

Ashley McClain worked for McDonald's as a a first assistant manager of one of their restaurants.  In July 2004 she requested leave after discovering that her father hand cancer.  She was granted two weeks of unpaid FMLA leave.  On October 18 she informed her manager that her father was scheduled to undergo surgery for a stent operation in 11 days.  She asked for and took an indefinite period of leave.  From October 18 to October 29 McClain was out on leave.  She did not contact her employer during this time.  McClain failed to report to work for her next scheduled shift on October 29.  McDonald's initiated an investigation of her failure to report to work. During her investigatory interview McClain claimed that she did not report to work as she was caring for her father after surgery.  She refused, however, to put her explanation in writing.  She was told to go home and wait for further instructions.  Plaintiff subsequently showed up to work and refused to leave when asked.  McDonald's called the police.  McClain left the premises only when the police arrived.  After a second similar confrontation McClain was fired.

McClain sued alleging that she was terminated for her use of FMLA leave.  The court disagreed. 

To establish a prima facie case of retaliation under the FMLA a plaintiff must show that: (1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment action; and (3) a casual connection exists between he adverse employment action and plaintiff's exercise of FMLA rights.  If plaintiff establishes a prima facie case for retaliation the burden shifts, and defendants must state a legitimate non-retaliatory reason for the adverse action.  Once defendants state a legitimate non-retaliatory reason for the adverse action, the burden sifts again, and plaintiff must demonstrate that defendants' proffered reason is a pretext for FMLA retaliation.  To show pretext, the plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer's proffered legitimate reasons for its actions that a reasonable fact finder could rationally find them unworthy of credence. 

McDonald's moved for summary judgment on plaintiff's FMLA retaliation claim on two grounds: (1) plaintiff was not engaged in a statutorily protected activity; and (2) plaintiff could not show that defendants' non-retaliatory reason for the adverse employment action was pretextual.

McDonald's alleged that plaintiff cannot establish that she engaged in statutorily protected activity and, therefore, she could not establish a prima facie case of FMLA retaliation because the FMLA does not protected employees who create fictional reasons for taking leave.  McClain testified at her deposition that she was with her father on October 29 while he underwent a stent operation.  At trial McClain admitted that her father did not undergo a stent operation at any tine in October 2004, a fact confirmed by the testimony of her father.  McClain claimed that when she requested leave on October 18 she honestly believed that her father was to undergo surgery.  Significantly for the Court, McClain had no explanation why she did not call her manager at any time during her 10 day absence and tell him that her father had not undergone surgery.  In fact, on her return to work and at her subsequent deposition McClain lied and stated that she cared for her father after surgery.

On these facts, the court concluded that McClain had not engaged in a statutorily protected activity (attending her father's stent implementation and caring for him thereafter). 

The Court also concluded that, even if plaintiff engaged in statutorily protected activity, McDonald's was nevertheless entitled to summary judgment on plaintiff's FMLA retaliation claim because McClain had failed to establish that McDonald's reason for terminating her was pretextual.  McDonald's fired McClain for failing to report to work for several days, insubordination, repeated use of foul language, and destruction of company property as a result of two confrontations she had during the company's investigation of her absences. 

Comment:  FMLA leave secured by fraud is not protected.  Moreover, employee's have no greater employment rights because they use FMLA leave than if they did not exercise FMLA rights. Employees who lose their cool during a company investigation of the bona fides of their leave can be disciplined just as if the employee had never gone on FMLA leave and lost their cool.  Of course, employers must be careful not to subject employee's who have exercised FMLA rights to disparate treatment in terms of discipline for conduct compared to the discipline for similar conduct issued to employees who have not exercised FMLA rights.      

The decision is reported at McClain v. McDonald's Corp., No. 05-1117, 2007 U.S. Dist. LEXIS 5461 (E.D.Pa. Jan. 25, 2007).

History of Granting FMLA Leave Negated Finding of FMLA Retaliation

In Daughtery v. Mikart, Inc., No. 06-13016, 2006 U.S. App. LEXIS 31472 (11th Cir. Dec. 19, 2006), the employee alleged that he was terminated in retaliation for his use of FMLA leave. The employer alleged that it terminated Daugherty for submitted a falsified medical certification.

Absent direct evidence, to establish a prima facie case of retaliation, a plaintiff must show that: (1) he engaged in statutorily protected activity; (2) he experienced an adverse employment action; and (3) there is a casual connection between the protected activity and the adverse action. 

If the plaintiff makes out a prima facie case, then the burden shifts to the defendant to put forth a legitimate, non-retaliatory, reason for the challenged action. If the defendant puts forth such a reason, the plaintiff must show that he will be able to demonstrate at trial that the defendant's stated reason for the action is pretextual.  Pretext is only proven if it is shown both that the reason was false, and that discrimination was the real reason behind the challenged action.  The evidence must reveal such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the employer's proffered legitimate reason for its actions that a reasonable fact finder could find them unworth of credence.

Here, the Court found that Daughtery failed to demonstrate that Mikart's stated reason for terminating him was pretextual.  Mikart's claimed that it terminated Daughtery for submitting a fraudulent medical certification in support of FMLA leave.  Daughtery pointed to the close temporal proximity to his exercise of FMLA rights and his termination.  Daughtery was terminated the day after he returned from FMLA leave.  He also pointed to hostility directed at him by Mikart management, who, Daugherty claimed, did not believe he was really suffering from a medical condition.  The Court disagreed.

The Court found that while close temporal proximity between Daughter's termination and his use of FMLA leave may be sufficient to show pretext, it did not in this case. The Court observed:

This is particularly true where, as here, the employer has a history of granting FMLA leave without penalizing its employees, including Daughtery.  Therefore, Daughtery needed to present other evidence supporting his claim that Mikart's stated reason for terminating him was pretextual.

The Court dismissed Daughter's proffer of the doctor's verification that it was his signature on the form noting that the issue was not whether it was the doctor's signature but whether the doctor's signed the particular form.  The Court observed that the "[t]he lines on the form did not match up and gave an appearance of having been altered.  The first two pages of the submitted form were original, but the last page, the page that contained the doctor's signature, was a copy."

The Court noted that Daughter was terminated after he returned to work from leave so that he could be afforded the opportunity to answer questions regarding the authenticity of the medical certificate.  This, the Court observed, supported Mikart's reason for terminating Daughtery.  The Court further observed that the hostility he experienced could have been caused by management's belief that Daughtery submitted a falsified form. 

Comment:  Close temporal proximity between an employee's exercise of FMLA rights and receipt of an adverse action can demonstrate pretext.  Where, however, there is other evidence that supports the employer's contention that it did not discriminate against the employee, courts want to see something more than close temporal proximity alone.  Here, one of the factors cited by the Court was evidence that the employer has a history of granting FMLA leave without penalizing employee's, including the plaintiff.  Employer's would be well advised to consider offering evidence that it has a history of granting FMLA leave to the aggrieved employees and others as part of its defense to a claim of FMLA retaliation.  Labor unions and associations representing employees may wish to counter by offering evidence that the employer has a history of denying FMLA leave requests. 

The decision is generally applicable to all federal sector variants of the FMLA.

The Eleventh Circuit covers Alabama, Georgia, and Florida.

Unprotected Leave Not A Basis for FMLA Retaliation Claim

In Sheville v. American West Airlines, Inc., No. CV05-02790-PHX-NVW, 2006 U.S. Dist. LEXIS 88058 (D.Az. Dec. 4, 2006), Sheville alleged that he was terminated for exercising his statutory right to take FMLA leave for personal medical reasons.  Sheville claimed that he took three months of FMLA-protected leave in the summer of 2000, shortly after being diagnosed with multiple sclerosis.  He was terminated four years later on December 1, 2004.  He took no FMLA leave for his medical condition between July 2000 and his termination.  Instead, Sheville used his annual allotment of paid sick days to schedule medical appointments. 

Generally, courts require a short period of time between an employee's exercise of FMLA rights and an adverse action to draw the inference that the adverse action was casually related to the exercise of FMLA rights.  The four year period normally is too long to establish the requisite casual connection.

To overcome the four-year argument, Sheville relied on a much shorter temporal gap of only four months.  He argued that he informed management of his deteriorating medical condition after returning from five days of paid, non-FMLA sick leave in August 2004.  He points to this as evidence that his termination four months later was due to his exercise of FMLA rights.  The Court disagreed.

The FMLA, the Court opined:

[R]equires Plaintiff to establish a casual connection between the taking of leave under the FMLA and the termination of employment. Yet Plaintiff's theory of causation is addressed to Plaintiff's unprotected activity- five paid non-FMLA sick days-- and his subsequent termination.  Plaintiff may not elide his burden production under the Family Medical Leave Act by focusing on irrelevant leave.

Comment:  To establish a wrongful discharge claim based on the use of FMLA leave an employee must initially establish that s/he took FMLA leave, they suffered an adverse action, and the adverse action was casually related to the use of FMLA leave.  Where the only evidence of casual connection is the time between the exercise of FMLA rights and the adverse action, the shorter the period of time the better.  anything more than six months will likely fail to establish the casual connection based on temporal proximity alone.

Here, the court is saying that the employee failed to establish that the adverse action was casually connected to the employee's exercise of FMLA rights because the employee was on non-FMLA leave.  Clearly, to have a viable FMLA retaliation claim the employee must have exercised some FMLA right.  That did not occur on Sheville.

Although the record is unclear, the court might not have adequately considered what Mr. Sheville was arguing.  it is well established that an employee may take FMLA leave concurrently with paid leave.  Therefore, the mere fact that Sheville was on paid sick leave is not necessarily dispositive of his claim that he attempted to asserted his FMLA rights on his return from five days of sick leave.  If his five days of sick leave were caused by his multiple sclerosis, either for treatment or due to incapacity, that condition could be a chronic or permanent serious health condition for which he would be entitled to leave.

Employees may also request FMLA leave after they have returned to work. Remember, employees are supposed to give notice of the need for leave in advance, if they have advance notice, for medical treatment.  If not,or if the leave was not foreseeable, an employee must provide notice of the need for leave as soon as practicable, which generally means within one or two business days of when the employee first learned of the need for leave.  Such notice might be after the fact (although waiting five days is generally too long before giving notice, absent unusual circumstances).  The employee also does not have to specifically identify the leave as FMLA qualifying.  In this case, where the employer knows that the employee has a qualifying serious health condition, the employee could satisfy the notice requirement by simply stating that he used leave due to his multiple sclerosis, which he apparently did.

My point (and I do have one) is that the Court may have been a bit too hard on Mr. Sheville.  The Court should have analyzed all of the facts to see if he was requesting FMLA leave on his return to work, and whether such a request was timely and adequate.  Employers should not simply conclude that because an employee was on paid leave that was not designated as FMLA leave beforehand that the employee cannot effectively assert a claim for FMLA leave on their return to work.    

 

Employee's Opposition to Treatment of Co-Worker Constituted FMLA Protected Activity

In Wood v. Handy & Harman Co., No. 05-CV-532-TCK-FHM, 2006 U.S. Dist. LEXIS 81186 (N.D.Ok. Nov. 6, 2006), the court found that the Plaintiff's opposition to the denial of FMLA leave to a co-worker constituted protected activity within the meaning of the anti-retaliation provisions  of the FMLA.

To establish a prima facie FMLA retaliation claim, Wood had to show that: (1) he engaged in a protected activity; (2) Defendant's took an action that a reasonable employee would have found materially adverse; and (3) there exists a casual connection between the protected activity and the adverse action.  The Defendant argued that Wood could not show that he engaged in "protected activity" within the meaning of the FMLA and, therefore, his FMLA retaliation claim must fail.

The Court initially noted that, typically, a plaintiff engages in the requisite "protected activity" simply by taking or requesting FMLA leave.  Here, the protected activity was Wood's opposition to Defendant's treatment of a co-worker.  Specifically, Wood's refused to deliver a memorandum that informed a co-worker on leave (to attend to her husband's illness) that her leave did not "qualify under the Family and Medical Leave Act."  Wood refused to deliver the memo because he believed it violated Carter's FMLA rights.  Woods was subsequently terminated.  He sued his employer alleging that he was terminated in retaliation for engaging in protected activity, e.g., refusing to deliver the memorandum to his co-worker.

The employer argued that the termination of Wood did not violate the FMLA's retaliation provision because the memo did not result in an "unlawful " practice under the FMLA.  The court disagreed.  Pursuant to 29 CFR 825.220(e), an employee may demonstrate that the conduct opposed was actually unlawful in order for his opposition to be protected (although that would also suffice).  The regulations further provides:

Individuals, and not merely employees, are protected from retaliation for opposing (e.g., file a complaint about) any practice which is unlawful under the Act.  They are similarly protected if they oppose any practice which they reasonably believe to be a violation of the Act. 

Woods, the Court held, can also demonstrate that he engaged in protected opposition activity if he reasonably believed that the denial of leave reflected in the memo to the co-worker violated the co-workers rights.

Here, the court found that Wood's subjectively believed that the decision in the memo to deny the request for FMLA leave violated his co-worker's FMLA rights.  The Court referenced a statement to that effect in an affidavit submitted by Wood.  Addressing whether Wood's subjective belief was objectively reasonably, the Court found that the record facts precluded summary judgment.  As evidence that material facts were in dispute on this issue, the Court noted discrepancies between several management officials regarding FMLA coverage for the co-workers leave request. 

Comment:  The Court's decision effectively validates the extension of FMLA protections in 29 CFR 825.220(e) to employees who reasonably believe that they are opposing a practice that violates the FMLA, even if that practice turns out not to violate the FMLA. To establish a reasonable belief, the court required evidence that the employee both subjectively believed that the employer violated the employee's own or another's FMLA rights, and that the employee's subjective belief was objectively reasonable (e.g., a reasonable person with the same information could hold the claimed subjective belief). 

The mere fact that the challenged practice is determined to be lawful will not defeat an FMLA retaliation claim if the employee subjectively believed it was unlawful, and that belief was objectively reasonable. Of course, a finding that the practice at issue is lawful will likely undercut the objective reasonableness of the employee's subjective belief that the conduct was unlawful.      

The decision is relevant to agencies and employees covered by Title I (DOL regulations), the CAA (congressional employees) and the PEOAA (employees of the Executive Office of the President). The OPM regulations do not contain a similar regulation extending FMLA protections to employees or individuals who "reasonably believe" they are opposing unlawful FMLA practices. FMLA retaliation claims are addressed in Chapter 15 of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation (Dewey Publications, Inc. 2003 & 2005 Supp.).

Decision Maker Knowledge of FMLA Leave Needed to Establish Retaliation Claim

In Tarnovsky v. Addidas America, Inc., No. 05-CV-1811-BR, 2006 U.S> Dist. LEXIS 83724 (D.Or. Nov. 15, 2006), the Tarnovsky alleged that his his employer terminated him in retaliation for his taking FMLA leave.  Tarnovsky worked for Defendant as a tax compliance manager from April 2000 until his termination in August 2005.  In June 2005, Plaintiff's mother became ill at a time when Plaintiff's department faced a July 1 deadline to submit tax information to Defendant's external auditors.  On June 15, 2005, Plaintiff told his supervisor that he need to take family leave to help care for and spend time with his ailing mother.  His supervisor told him to take the time h3 needed.  Plaintiff took intermittent leave for the next few weeks.  He was paid for at least some of the time he took family leave.

Even though his leave was approved, Plaintiff alleges that his supervisor stressed that he should do everything in his power to make sure the July 1 deadline was met.  Meeting the deadline was also a benchmark for his supervisor to receive a merit bonus.  His department missed the July 1 deadline, and Plaintiff believes that his absence on family leave was the primary reason.  According to Plaintiff, his supervisor was upset that the deadline was missed. 

In August 2005, Plaintiff sought a raise after a colleague received a substantial raise to stay with the company.  Plaintiff contacted the COO to request a market survey of pay levels for Plaintiff's job. The survey showed that Plaintiff's compensation was $10,00 below market level.  The Director of Benefits and Compensation recommended against a raise because of her belief that the market rate should not be the driving factor to warrant giving an employee a substantial mid-year bonus. 

Plaintiff demanded a $10,000 raise.  Plaintiff was subsequently informed by the CFO that his request for a raise was being denied.  After the meeting Plaintiff told his supervisor and another manager using profanity that he hated the CFO and that he had to leave the office before he ended up punching him.  On his way out he punched the wall of an elevator in anger.  The Defendant initiated an investigation.  The CFO and two other executives subsequently decided to terminate Plaintiff's employment.  His supervisor agreed with the decision.

Addressing his FMLA retaliation claim, the court initially noted that Plaintiff cannot state a claim for retaliation unless he can establish a casual connection between the family leave taken and the allegedly retaliatory conduct of Defendant.  Plaintiff alleged that that he was terminated because his supervisor was mad at him for taking FMLA leave that resulted in his missing out on a merit bonus.  The court found that, even assuming that his supervisor was mad at him for missing the bonus, the record did not reflect that his supervisor was the decision-maker or that he participated materially in the termination decision.  The court went on to find that Plaintiff failed to produce any evidence that the parties who ultimately made the termination decision even knew that Plaintiff had taken family leave.  The court concluded that any causal connection between Plaintiff's exercise of his right to family leave and his termination is "speculation at best." 

Comment: To prove retaliation an employee must establish that the individuals who made the adverse action at issue were at aware of the employee's protected FMLA activity at the time the decision was made. Absent that knowledge, an employee will not be able to establish that the adverse action was casually related to the use of FMLA leave.  Employee's must make sure to address this issue through whatever means of discovery (deposition, interrogatories, interviews) available.  Employers might glean from this decision an advantage of having decision makers with a certain degree of distance or unfamiliarity from the employee being disciplined as a means to disrupt the knowledge of protected activity requirement that is central to a retaliation claim.