The FMLA Blog

Unfulfulled Warnings of Discipline Failed to Establish FMLA Interference Claim

In McTigue v. Spokane Transit Authority, No. CV-04-064-FVS, 2006 U.S. Dist. LEXIS 74873 (E.D.Wash. Oct. 16, 2006) the court found that the employer's repeated warnings to Mr. McTigue that he would be disciplined if he continued to miss work without authorization failed to demonstrate that the employer interfered with the employee's FMLA rights because unfulfilled warnings do not constitute adverse actions, a necessary element of an FMLA interference claim in the Ninth Circuit.  In that case, the employee's request for FMLA leave for heart by-pass surgery was granted.  He was absent from February 18, 2001, until October 24, 2002.  Between that date and June 15, 2006, he missed over 300 additional days of work.  Some absences were covered by the FMLA; many were not.  The warnings involved these latter absences.

Comment: To establish an FMLA interference claim many courts require that the employee initially prove that they suffered from an adverse employment action.  There is a split in the federal appellate courts whether an adverse action requires, for example, issuance of discipline or whether a threat to issue discipline is sufficient.  The McTigue decision ignores the FMLA's definition of "interference" with the exercise of FMLA rights as discouraging an employee from using FMLA leave.  An employee who was repeated threatened with discipline for taking, in some instances, FMLA leave would appear to fall within the FMLA's protection from interference.  All federal sector variants of the FMLA prohibit employers from making intimidating, threatening, or coercive actions for exercising FMLA rights. 

Unfulfilled Threat to Change Employee’s Position on Return from FMLA Leave Did not Violate FMLA

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.