Employer Counterclaim Can Be Basis of FMLA Retaliation Claim

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.