An employer’s unfulfilled request, offer, or threat to change an employee’s position on return from FMLA leave is not an adverse employment action warranting recovery under the FMLA.
In Schofield v. Metropolitan Life Ins. Co., No. 3:CV-03-0357, 2006 U.S. Dist. LEXIS 65998 (M.D.Pa. Sept. 15, 2006), plaintiff alleged that MetLife violated the FMLA when his supervisor to him that he “probably won’t be coming back [to his] project manager position …because of [his] illness.” Instead Schofield would be retained as a consultant and another person would take over his project manager position. Schofield was, in fact, returned to his previous position upon his return from FMLA leave. The court dismissed the case because Schofield failed to establish that he suffered an adverse employment action as a result of the request, offer, or threat.
Comment: To establish an actionable violation of the FMLA a plaintiff generally must demonstrate that they suffered an adverse employment action casually related to the exercise of FMLA rights. The decision could also have found in favor of the employer because an employee is not entitled to return to their same position at the conclusion of FMLA leave. An employer may place an employee returning from FMLA leave in an equivalent position. As such, stating that the employer might return the employee to a different position would not violate the FMLA, unless the employer was compelled to return the employee to the same position by another law, collective bargaining agreement, or employer policy. Alternatively, even though he was ultimately returned to his pre-leave position, Mr. Schofield may have been successful if he could have established that the threat chilled his willingness to exercise his FMLA rights, such as the right to future FMLA leave.