In Barton v. Zimmer, Inc., No.1:06-CV-208-TS, 2009 U.S. Dist. LEXIS 60555 (N.D. Ind. July 16, 2009), the employee (Barton) alleged that his employer (Zimmer) interfered with his FMLA rights by placing him on paid administrative leave in lieu of allowing him to return to work from FMLA leave immediately, and by failing to return him to his former or an equivalent position when he was allowed to return to work.
In both instances, the court accepted Zimmer's argument that the right to reinstatement is not absolute and, under the circumstances, it acted appropriately. With respect to the delay in reinstatement, Zimmer established that it would have placed Barton on paid administrative live regardless of whether he took FMLA leave while it investigated his age discrimination claim against his supervisor. The court also rejected Barton's claim that Zimmer delayed his return after the investigation had concluded finding that, even if that was the case, Barton failed to establish that any delay was casually related to taking FMLA leave. "The mere fact that Plaintiff was on leave when the Defendant discovered the problems with the Plaintiff's job responsibilities and with Richardson's supervision of the Training Department did not bar it from being able to use paid administrative leave, or any other measure it would have otherwise used, to address the issue."
Similarly, the court rejected Barton's argument that it violated the FMLA by failing to return him to the same or equivalent position when he did return to work. On his return, Barton was assigned to develop and present a new sales training class. Zimmer argued that the new assignment was in response to changes being made within the Training Department. Zimmer argued that the right to reinstatement to his same or equivalent job is not absolute, and that it would have assigned Barton to conduct the training anyway to meet the needs of the company. The court agreed with Zimmer. The court observed:
Therefore, regardless of whether the Plaintiff's job was the same or equivalent to his job before he took FMLA leave, the Plaintiff is not entitled to present this claim to the jury unless there is a genuine issue of fact whether the Defendant would have given him these assignments if he had not taken FMLA leave.
The court found in favor of the Zimmer because Barton failed to address the substantance of his employer's claim, electing instead to simply assert that the new assignment was not substantively equivalent to the duties he performed in his pre-leave position.
Comment: The decision gets the interaction of the FMLA return to work requirements and the "no greater right to resintatement" provisions correct. An employee's FMLA right to be returned to the same or an equivalent position is not absolute. The FMLA recognizes that an employee has no greater right to reinstatement or to other benefits and conditions of employment then if the employee had been continuously employed during the FMLA leave period. 29 USC 2614(a)(3). If an employer can demonstrate that it would have taken the same action had the employee not taken FMLA leave, the burden shifts to the employee to overcome that assertion. To defeat summary judgment, the employee must proffer sufficient evidence to raise a genuine issue of material fact that the employer would not have taken the challenged action had the employee not taken FMLA leave. As in Barton, an employee who fails to counter the employer's legitimate, nondiscriminatory justification for any delay or post-return change in job duties will find him or herself on the losing end of a summary judgment motion.