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.
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