The FMLA Blog

Employee's Subjective Feelings that Employer Was Attempting To Dissuade Him from Taking FMLA Leave Insufficent to Establish Interference Claim

Joseph Di Giovanna alleged that Beth Israel Medical Center interfered with his FMLA rights by attempting, unsuccessfully, to dissuade him from taking FMLA leave.  Di Giovanna pointed to comments made by his supervisor, Dakis.  When Di Giovanna allegedly asked her if he should file for FMLA leave, Dakis allegedly told him that "there was no need to, that another director.. had a mother that was terminal, that passed away and she did not file for FMLA."  Without even inquiring what Dokis meant, Di Giovanna claims that he "understood" Dakis to have been discouraging him from filing for FMLA leave." 

Di Giovanna also alleged that he was discouraged as a result of being "interrogated" and "harassed" with "barrages of questions" about his father's condition at "inappropriate times."  The court found that the cited deposition testimony failed to support the inflammatory characterization.  The alleged offensive questions were how Di Giovanna's father was doing and which hospital he was in. 

The court found that Di Giovanna's subjective feelings, assuming he actually had the feelings he now claim he had, abut what they actually said are insufficient to constitute interference under the FMLA, and not one of the alleged statements would have dissuaded a similarly situated employee of ordinary resolve from attempting to exercise FMLA rights."  The court observed that Di Giovanna himself was granted all of the leave he requested.  The court awarded summary judgment in favor of the defendant Medical Center.

Comment:  An employee's subjective belief that his or her employer was attempting to discourage them from exercising their FMLA rights is not the controlling standard.  Rather, courts will apply an objective standard to determine whether, in context, the alleged discouraging conduct would have discouraged a similarly situated employee "of ordinary resolve."   

Threatening Termination for Any Leave After Expiration of FMLA Leave Interfered With Employee FMLA Rights

In response an employee's request for additional FMLA leave, the employer allegedly asked "Does this mean you're going to take another three months off?"  Plaintiff had a history of FMLA leave usage, including taking 3 months off in the preceding year following foot surgery.  The following day, the supervisor sent a letter to the employee stating:

Upon calculation of lost time due to FMLA, it has been determined that until September 28, 2006, you have five weeks of FMLA time left available to you per federal law guidelines.  Please be advised that any time taken beyond the five weeks of remaining leave between now and September 28, 2006 will result in the loss of benefits and termination of employment under the law.

The employee was terminated four days later, before she took any FMLA leave.  The employee sued alleging retaliation and interference with FMLA rights.  The employer moved for summary judgment arguing that the employee was terminated for a reason independent of the FMLA (bad attitude).

In denying summary judgment to the employer, the court noted the the supervisor's statement was susceptible to various interpretations depending on the tone it ws given, "from solicitous of Plaintiff's well-being, to merely information-seeking, to annoyed or resentful." Similarly, the court noted that the letter could be reasonably construed as simply informing Plaintiff of her remaining FMLA leave time, or as an expression of displeasure of her intent to request more FMLA leave.  For purposes of summary judgment, where all inferences favor the non-moving party, the court went with the latter interpretation.

The court opined that the combination of the supervisor's statement, the threatening letter, and the fact that the employee was terminated four days later before she could take any FMLA leave, suggested that the employer was displeased with the employee's request for additional FMLA leave.  The court noted that the FMLA prohibits an employer from interfering with or retaliating for an employee's attempt to exercise FMLA rights.

Almeida v. Althena Health Care Associates, Inc., No. 3:07cv517 (PCD), 2009 U.S. Dist. LEXIS 15103 (D. Conn. Feb. 26, 2009).

Comment:   A common misconception by employers is that FMLA protections end once the employee  uses up their 12-week entitlement.  The Almeida cases illustrates that this is simply not the case.  How an employer treats an employee's use of unprotected, non-FMLA leave may, in some circumstances, violate the FMLA.  This is particularly true where, as in Almeida, the employer threatens the employee with termination for the first absence after FMLA leave is exhausted, followed a few days later by terminating the employee anyway before any FMLA leave is used.

The denial of summary judgment does not mean that the employer will ultimately be found liable for violating the FMLA.  It does, however, make resolution of the claim, whether by settlement or trial, exponentially more expensive and time consuming.  This expense, moreover, may have been avoided had supervisors been properly trained about employee FMLA rights and protections.  As a free practice tip, putting your illegal threats in writing is something to be avoided.         

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.   

Counseling Employee for Excessive Sick Leave Did Not Interfere with Employee's FMLA Rights

In Wilde v. City of Lincoln, No. 4:05CV3293, 2007 U.S. Dist. LEXIS (D. Neb. March 27, 2007), the employee alleged that the City interfered with his FMLA rights by counseling him for using sick leave in excess of what was permitted by the collective bargaining agreement.  Wilde argued that because he used the sick leave in conjunction with FMLA the counseling discouraged him from using FMLA which interfered with his FMLA rights.  The Court disagreed. 

The Court held that, even assuming that he used sick leave to care for family members with serious health condition, the City did not interfere with his FMLA rights by counseling him.  Wilde's sick leave requests periodically exceeded the amount of leave available to him under collective bargaining agreement.  He was, however, never denied sick leave.  The City, the Court concluded, had the right to counsel Wilde to avid using sick leave at a rate exceeding that permitted under his union agreement.

Comment:  An employee may use paid leave in conjunction with FMLA leave.  An employer may, however, continue to enforce existing company policies regarding the use of paid leave.  If an employer would counsel an employee for exceeding the amount of sick leave they have available in the absence of FMLA leave, the employer may counsel an employee who takes sick leave in conjunction with FMLA leave for exceeding the amount of sick leave available.  The use of FMLA leave does not insulate the employee from the normal rules governing paid leave.  On the other hand, employers must be careful to not treat employees who take FMLA disparately compared to employees who have not taken FMLA leave.  For example, if the employer has never counseled an employee for exceeding the amount of sick leave available but counsels an employee who took FMLA, the employer may violate the anti-discrimination provisions of the FMLA.    

Encouraging Employee to Pursue Options Other Than FMLA Leave Constituted Interference that "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 interference 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 on lower level supervisors as a result of an employee's FMLA absence.