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Defending FMLA Retaliation Claims: Employers, Follow Your Normal Practice

Employers are well aware of the increased risk of implementing an adverse action (e.g., suspension, termination of employment) in the face of an employee’s claim for FMLA leave.  Defending against such claims depends upon being able to demonstrate the legitimate, nondiscriminatory basis for the adverse action.  At times, however, the close proximity of the adverse action to the employee’s FMLA request is difficult to overcome.  In a number of recent FMLA retaliation cases, courts have analyzed the legitimacy of an employer’s non-discriminatory reason and the impact of the timing of the employer’ adverse action on such claims, with varying outcomes for employers.


Allen v. Nutrisystem, Inc., 21 WH Cases2d 1030 (3d Cir., 2013). 


In this case, a customer service representative, brought an FMLA retaliation claim after she was terminated for poor work performance (e.g., failure to follow the call-out procedure and several instances of poor treatment of customers in handling customer calls).  She claimed that the termination of her employment was in retaliation for her use of FMLA leave on three occasions during an eight month period and further, upon return from her most recent FMLA leave, she received three write-ups, including a final written warning due to her treatment of customers.  In response to the final written warning, she claimed that there were mechanical problems with the phone used by her.  Her assertions were investigated by the company’s human resources department, which determined that there was no evidence to suggest that mechanical issues contributed to her poor performance.


As there was no direct evidence of retaliation, the court considered the employee’s claims under the McDonnell Douglas burden-shifting framework.  Thus, to bring a claim, the employee was first required to establish that she took FMLA leave, she suffered an adverse employment action and that there was a causal connection between the adverse employment action and the FMLA leave.  Upon demonstrating her prima facie case, the employer would then be required to establish a legitimate, nondiscriminatory reason for the adverse action, at which point, the burden falls back on the employee to show that the employer’s legitimate, nondiscriminatory reason was pretextual.


In Allen, there was no dispute that the customer service representative completed school work and handled other personal matters during work hours.  Further, the customer service representative failed to present evidence to dispute the employer’s assertions of numerous policy violations in the manner in which she failed to properly handle customer calls.  In fact, the employer provided evidence that shortly after her last FMLA leave, the customer service representative sent numerous drafts of school projects back and forth between her work and personal e-mail account, thus supporting the employer’s assertion that the employee was handling personal matters during work-time.  Notwithstanding the temporal proximity between the most recent FMLA leave and the disciplinary actions, the court found that the customer service representative failed to rebut the employer’s legitimate, nondiscriminatory reason for the termination of her employment and granted the employer’s motion for summary judgment.


Murphy v. The Ohio State University, 21 WH Cases 2d 914 (6th Cir., 2013).


In this case, a part time dispatcher worked for Ohio State University (OSU).  Prior to her position with OSU, she worked as a part-time dispatcher for the Ohio cities of Grandview Heights and Upper Arlington. 


In September, 2011, the dispatcher received a citation for disobeying a police officer’s commands.  Shortly thereafter, on September 30, 2011, the dispatcher began an unrelated period of FMLA leave, returning to work on December 21, 2011.  While she was on FMLA leave, her employer, OSU, learned she had applied for a full-time dispatcher position at her prior employer, the City of Grandview Heights and also learned that she worked part-time for Grandview Heights while she was on FMLA leave from her position at OSU.  When she returned to work, the dispatcher was informed that OSU was investigating the police citation as well as her potential misuse of FMLA leave.  After the investigation was completed, the dispatcher received a 3-day unpaid suspension.  Shortly thereafter, the dispatcher filed an FMLA retaliation claim.

Utilizing the McDonnell Douglas burden-shifting framework, the court concluded that the dispatcher established a prima facie case of FMLA retaliation.

OSU argued, however, that it legitimately investigated and suspended the dispatcher upon her return from FMLA leave because she demonstrated poor judgment in her exchange with the police officer and because she worked for another employer while she was on FMLA leave from OSU, despite having provided to OSU an FMLA certification indicating that she could not work at all during her leave of absence.

In response, the dispatcher claimed that OSU’s basis for its decision to issue the 3-day suspension was pretextual  because OSU did not follow the requirements of the applicable collective bargaining agreement related to investigations, OSU delayed its investigation to prejudice her, the charges against her were baseless and OSU failed to exercise due diligence in conducting its investigation.

In considering the dispatcher’s assertions, the court found that the fact that OSU was investigating the dispatcher for possible misuse of leave is not evidence of pretext, noting that an employer is entitled to inquire into whether an employee has abused his/her leave.  The court further concluded that the temporal proximity of her leave and the disciplinary proceeding alone did not establish that OSU’s reasons were pretextual.  The court reasoned that even if some aspects of the investigation were flawed, there was no evidence that these flaws undermined OSU’s investigation given that the dispatcher was provided the due process to which she was entitled under the applicable collective bargaining agreement.  As a result, the court ruled that the employer was entitled to summary judgment, dismissing the employee’s FMLA retaliation claim.

Nelson v. Clermont County Veterans Service Commission, 21 WH Cases2d 965 (S.D. Ohio, November 1, 2013).

Unlike the prior two cases, in Nelson, the court refused to dismiss the employee’s FMLA retaliation claim, this time relying in part on the temporal proximity of the adverse action to the employee’s FMLA leave of absence.

Kristan Nelson was an administrative assistant for a county veteran’s commission.  Over a period of two years (March, 2007 through April 2009), she was counseled for a variety of performance issues, including claiming unauthorized overtime and/or compensatory time, using her work computer for personal matters and not timely completing work assignments.  A few months later, at the end of September, 2009, Ms. Nelson took FMLA to care for her daughter who had been sexually assaulted and later, took FMLA for her own stress-related condition stemming from her daughter’s attack.

While Ms. Nelson was on leave, additional mistakes were found with respect to time sheets submitted by her prior to her leave.  Ms. Nelson did not dispute that her time sheets were inaccurate as submitted.  Ms. Nelson returned from her leave in November, 2009.  However, she brought her daughter to work on a regular basis and her supervisor advised her that she had to choose between her job and caring for her daughter.  Ms. Nelson inquired about filing an internal grievance related to this exchange with her supervisor and also submitted a proposed, slightly reduced work schedule for her employer to consider.  Later that same week, Ms. Nelson was informed that she was subject to a pre-disciplinary hearing for misconduct.  Shortly thereafter, a hearing was conducted.  Ms. Nelson declined to provide evidence or testimony at the hearing, but later submitted a rebuttal letter that was not considered by the hearing officer. Ms. Nelson’s employment was ultimately terminated on several grounds, including incompetency, dishonesty and neglect of duty.  Ms. Nelson filed a claim alleging that she was terminated for taking FMLA and for seeking information about filing an internal grievance.

Given the absence of direct evidence, the court considered Ms. Nelson’s claim utilizing the McDonnell Douglas burden-shifting framework.  The court noted that Ms. Nelson’s employment was terminated only nine days after returning from FMLA leave and while temporal proximity is generally “not enough,” the court pointed to evidence presented by Ms. Nelson that her supervisor had overloaded her with work upon her return from leave.  The court acknowledged that the employer had articulated a legitimate business reason for terminating her employment.  However, the court found that Ms. Nelson demonstrated sufficient evidence of pretext in challenging the reasonableness of the employer’s decision, given that the hearing officer did not consider Ms. Nelson’s rebuttal letter and the employer did not follow its own disciplinary procedures.  Thus, the employer’s motion for summary judgment was denied and Ms. Nelson was permitted to pursue her claim.

The determination of whether an employer has a legitimate, nondiscriminatory basis for its adverse action is fact specific.  Courts are influenced, to varying degrees, on the extent to which the temporal proximity between the FMLA leave and the adverse action gives rise to an inference of retaliation.  Further, in two of these cases, the court considered whether pretext could be established based on the employer’s failure to follow its own internal disciplinary procedure, reaching different results. 

The lesson for employers?  Where an adverse action comes in close proximity to an employee’s use of FMLA leave, it is even more critical to demonstrate that the employee was treated consistently with the employer’s policies, irrespective of the leave.  The employer’s failure to follow the employer’s normal disciplinary process creates the possibility that a court will consider that the employer did not act reasonably or in good faith and, therefore, will allow the employee’s claim to proceed to trial.











Creating Circuit Court Split, Seventh Circuit Rules Employee’s Trip to Las Vegas With Ill Parent May Be Covered by FMLA Leave

FMLA leave or an employee's family vacation?  Sometimes it is tough for an employer to tell.

The FMLA specifically permits employees to use FMLA leave to “care for” an immediate family member with a serious health condition.  In most instances, the circumstances giving rise to the need for FMLA leave are straight-forward, involving providing transportation for the family member to attend medical treatment, providing psychological support and comfort or providing for the family member’s medical, hygienic or nutritional needs.  In other instances, however, the employee’s request to use FMLA to care for a family member appears suspect because it involves what would otherwise seem to be a family vacation.


In Ballard v. Chicago Park District, No. 13-1445 (7th Cir., January 28, 2014) the Seventh Circuit Court of Appeals considered whether the FMLA applies to protect an employee’s trip to Las Vegas with her ill mother where the employee claims she was needed to provide physical and psychological care for her mother during the trip.


In Ballard, the employee was the primary caregiver for her terminally ill mother.  The mother had always wanted to go on a family trip to Las Vegas and, to honor her mother’s request, the employee asked her employer for permission to take unpaid leave to go on the trip.  The employer denied the request.  However, the employee claimed she was not aware of the denial and proceeded to go on the trip with her mother, during which she served as the mother’s primary caregiver, including taking the mother to the hospital when there was an issue with her medication.  The employee was subsequently terminated from her position for an unauthorized leave. 


The employee filed a lawsuit under the FMLA.  Her employer filed a motion for summary judgment, arguing that the employee did not “care for” her ill mother in Las Vegas for purposes of the FMLA, because she was already providing care at home and the trip was not related to medical treatment.  The district court denied the employer’s motion for summary judgment, finding that the FMLA could apply to protect the absence so long as the employee was providing care, regardless of the location.


In affirming the district court’s decision, the Seventh Circuit noted a number of weaknesses in the employer’s argument.


The Seventh Circuit rejected the employer’s argument that the employee had to participate in ongoing treatment while on the trip in order to be covered by the FMLA, noting that the FMLA provisions refer to “caring” for a family member, not providing “treatment,” and that there was nothing in the statute or regulations to suggest that the employee had to be participating in the family member’s treatment while away from home, but not when providing care at home.  In fact, the court recognized that the many of the types of care described in the regulations (e.g., providing assistance with medical, hygienic and nutritional needs), does not change because the person is not undergoing active treatment.


In making this ruling, the court confirmed that the regulations do not place any geographic limitations on where the “care” is provided and acknowledged that the FMLA does not provide that the care must be provided at the family member’s home.  The court also considered the FMLA regulations describing the information that must be provided on the required medical certification for caring for a family member, emphasizing that “care” is defined expansively and does not include any geographic limitation on providing physical and psychological care.


In this case, the court noted that the employee’s mother’s medical, hygienic and nutritional needs did not change while she was on the trip and, in fact, the employee’s assistance was needed to address medication issues while they were away.   At a minimum, the court concluded, the physical care provided by the employee was sufficient to fall within the scope of the FMLA’s coverage.


The Seventh Circuit acknowledged that its ruling is contrary to decisions in the Ninth and First Circuit Courts of Appeals in which employee trips relating to ill family members were determined to not be covered by the FMLA.  Tellis v. Alaska Airlines, Inc., 414 F.3d 1045 (9th Cir. 2005) (emphasizing that caring for a family member under the FMLA involves some level of participation in on-going treatment); Tayag v. Lahey Clinic Hospital., Inc., 632 F.3d 788, 791 & n.2 (1st Cir 2011) (denying FMLA coverage for a healing pilgrimage to the Philippines and noting that the employee “properly does not claim that caring for her husband would itself be protected leave” if they traveled “for reasons unrelated to medical treatment of [her husband’s] illnesses”).  In rejecting the employer’s reliance on these cases, the Seventh Circuit surmised that the conclusions in those cases did not follow the plain reading of the FMLA and its regulations which do not require that care for the family member be related to ongoing treatment nor place any geographic limitation on the care.


The lesson for employers?

Of course, employers considering the impact of the Ballard decision may be concerned that employees will attempt to abuse FMLA leave by planning trips and taking ill family members along to obtain FMLA coverage for the time away from work.  Ultimately, however, while FMLA abuse is possible, as the Seventh Circuit emphasized, employers may (and should) utilize the medical certification process to flush out improper requests.


Employer’s Review of Employee’s Facebook Photos and Thorough Investigation Supports Honest, Good Faith Belief that Employee Abused FMLA Leave

Facebook may not always be an employee's "friend"...

From time to time, employers may suspect that an employee is abusing FMLA leave.  In such instances, the challenge becomes obtaining sufficient evidence on which to prove that the employee has engaged in such abuse, knowing that any decision to deny FMLA leave or discipline an employee for FMLA abuse will be subject to challenge.


In a recent decision,  Jaszczyszyn v. Advantage Health Physician Network, No. 11-1697, 2012 U.S. App. LEXIS 23162 (6th Cir. Nov. 7, 2012), the Sixth Circuit determined that the employer had adequately supported its determination that the employee had abused FMLA leave.  The source of proof?  Facebook photos published by the employee.


In Jaszczyszyn, an employee took intermittent leave under the FMLA for pain associated with a prior back injury.  The certification submitted by the employee’s physician stated that the pain caused her to be incapacitated, such that she could not report to work when having a flare up.  While on leave, the employee attended a local Polish heritage festival.  Over the eight-hour period the festival ran, the employee was photographed visiting various Polish Halls with friends.  When those 127 photos surfaced on Facebook and were discovered by the employee’s coworkers (her Facebook friends), Advantage Health took steps to investigate. 


Advantage Health met with the employee to discuss the exact limitations imposed by her medical condition and confirm that the pain rendered her incapacitated and unable to work.  It then questioned her about the Facebook photos.  The employee did not deny engaging in the conduct and did not dispute that the photos painted a picture quite unlike that presented in her medical certification.  Because the employee could offer no satisfactory explanation for her conduct, Advantage Health terminated her employment.


The Court of Appeals for the Sixth Circuit granted summary judgment to the employer on both the FMLA interference and retaliation claims.  With respect to the retaliation claim, the Sixth Circuit agreed with the district court that the employer had an honest belief that the employee’s behavior was fraudulent, and the employee did not present any evidence that the employer has acted for any other reason. 


The lesson for employers?  Despite seemingly obvious evidence of the employee’s misrepresentation of her serious health condition and apparent fraud in using FMLA leave, the employer conducted a thorough investigation, confirmed the employee’s position with respect to the status of her medical condition and gave her an opportunity to defend herself.  Because the employer did not rush to judgment, it was able to support its decision and convince a court to uphold it.

Webinar on Final FMLA Regulations

Next week, Duane Morris Institute will be offering a Webinar on the Department of Labor's Final FMLA Regulations.

On February 5, 2013, the U.S. Department of Labor (DOL) issued its Final Rule implementing important expansions of the Family and Medical Leave Act (FMLA) relating to the military leave provisions and the eligibility for and calculation of FMLA for certain airline personnel. These regulatory changes implement and interpret statutory amendments to the FMLA pursuant to the National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). The Final Rule also clarifies the manner in which employers calculate an employee’s use of intermittent FMLA leave as well as reiterates an employer’s obligation to comply with the confidentiality provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA).

In anticipation of these changes, employers must update their FMLA policy and practices and ensure that they are using the modified DOL notice and certification forms. This 1 hour webinar will highlight the necessary policy changes employers should implement as well as the impact of these changes on day to day FMLA compliance practices.

To register, please see the link below.


Department of Labor Issues Final FMLA Regulations.

I am pleased to share with you a recent Client Alert I co-authored on the Department of Labor's Final FMLA Regulations.

These regulatory changes implement and interpret statutory amendments to the FMLA pursuant to the National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). The Final Rule also clarifies the manner in which employers calculate an employee's use of intermittent FMLA leave, as well as reiterates an employer's obligation to comply with the confidentiality provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA).

Thank you.

Linda Hollinshead


Employees May Bring FMLA Claims Even When They Are Not Eligible for FMLA Leave

This week, the Eleventh Circuit held that a former employee may pursue FMLA claims against her employer, despite the fact that she was a new employee and failed to meet the eligibility requirements under the law.  How is this possible?   

In Pereda v. Brookdale Senior Living Communities, Inc., 11th Cir., No. 10-14723, Jan. 10, 2012, an employee gave advanced notice of her need for FMLA leave in connection with her pregnancy.  Shortly after informing her employer of her pregnancy, the employee was placed on a performance improvement plan and ultimately terminated from her position.  The now former employee brought FMLA interference and retaliation claims against her employer.   

At the time the employee made the request for leave, she had not met the FMLA’s eligibility requirements.  Her employer, Brookdale, alleged that her FMLA claims failed because she was not eligible for FMLA leave.  It was undisputed that the employee would have met the eligibility requirements at the time she would have taken her leave.  The former employee asserted that if her FMLA claims were not permitted to proceed, employees would fear that they would be retaliated against for providing advanced notice of their need for leave as required under the FMLA.   

The Eleventh Circuit ruled that because the FMLA requires employees to provide advanced notice of their need for FMLA leave in some instances, employees who provide such notice are protected from interference prior to the event for which leave is needed (in this case, pregnancy).  With respect to the FMLA retaliation claim, the Eleventh Circuit held that the employee engaged in protected activity when she made a pre-eligible request for post-eligible leave.  As a result, the Eleventh Circuit ruled that the former employee could pursue her FMLA interference and retaliation claims.   

This issue has not yet been addressed by other circuit courts.  Therefore, at the moment, only employers in the Eleventh Circuit must comply with this precedent.  However, employers should be mindful that other courts could find the Eleventh Circuit’s reasoning persuasive if faced with similar employee claims.  Bottom line?  When analyzing the risk of an employee termination, an employer must consider the potential for FMLA claims, even by an employee who has yet to meet the FMLA's eligibility requirements.  Moreover, an employee who is denied a leave request may bring other claims under the Americans With Disabilities Act or similar state law. 

In two upcoming webinars, we address the risks associated with denying employee leave requests, including complications resulting from the interplay of the ADA, FMLA and other state laws.  Please join us to review best practices in leave administration:   

January 19, 2012 -  The Painful Pentagon: FMLA, ADA, GINA, WC and STD     

(One-Hour Webinar)   


February 8, 2012 - Leaves of Absence - Lessons Learned    

(One Hour Webinar) 


Calling All Employers! Requiring Employee Compliance With Your Call Out Procedures Does Not Violate The FMLA

Good news... finally.  A number of recent FMLA court decisions reaffirm an employer’s right to discipline or discharge an employee for failing to follow the employer’s call out procedures. 

In Righi v. SMC Corporation of America, No. 09-1775 (7th Cir., Feb. 14, 2011), the employee was away from work and failed to make any effort to contact his supervisor for more than a week, in violation of his employer’s call out procedure.  This call out procedure provided that the failure to report to work for two (2) consecutive days without notifying his supervisor was grounds for termination of employment. 

In Thompson v. CenturyTel of Central Arkansas, LLC, No 09-3602 (8th Cir., Dec. 3, 2010), the employee violated her employer’s call out policy when she failed to regularly call her supervisor (and either speak directly with her supervisor or leave a voicemail message) if she was going to be absent. 

In Brown v. Automotive Components Holdings LLC, No. 09-1641 (7th Cir., Sept. 8, 2010), the employee violated notice procedures set forth in a collective bargaining agreement when she failed to show up for work or explain her absence in person or by phone within 5 days of receiving a quit notice from her employer.

In each of these cases, the former employee brought a claim for interference under the FMLA after being terminated for violation of the employer’s call out procedures. 

In response, the employer defended the decision to terminate, citing that, under the FMLA, an employer has the right to insist that its employees comply with its “usual and customary notice and procedural” requirements related to taking leave. 

The courts in each of these decisions agreed with the employers and denied the employee’s claims for interference under FMLA, finding that an employer may insist that its employees comply with its call out procedures.  

The take away for employers? 


Courts will uphold an employer’s decision to discipline or terminate an employee for failing to comply with a call-out procedure.  In order to be well positioned to defend against an FMLA interference claim, employers should consider the following:

  • Establish clear, written call out procedures and ensure that employees are aware of those procedures. 
  • Review the call out procedure to ensure that it is not more burdensome than the FMLA notice requirements for foreseeable and unforeseeable leave set forth in the current FMLA regulations, 29 C.F.R. § 825.302(d); 29 C.F.R. § 825.303(c).
  • Be sure that the employee is being disciplined/discharged for violating the call out procedure and not for taking protected FMLA leave in the first place. 
  • Consistent with FMLA regulations, be prepared to create exceptions for unusual circumstances where the employee is unable to follow the procedure.
  • Make sure that the call out procedures are applied consistently to FMLA and non-FMLA absences (otherwise, you may not have an FMLA interference claim, but you will have a potential discrimination claim). 

This Blog should not be construed as legal advice or as pertaining to any particular factual scenario.








Employee’s “Faith Healing” Trip With Ill Spouse Is Not Protected By The FMLA

Most employers assume that an employee may not use FMLA to take a vacation.  However, the line between a vacation, and time away for medical care, may not always be so clear.

An employee who tried to use FMLA leave to go on a “faith healing” trip for her ill spouse recently found herself on the wrong side of that line in Tayag v. Lahey Clinical Hospital, Inc., No 10-1169 (1st Cir., Jan. 27, 2011).  

*   *   *

In Tayag, the employer, Lahey Clinical Hospital, Inc., provided its employee, Maria Lucia Tayag, with intermittent FMLA from 2003 until July, 2006 to enable Ms. Tayag to provide care for her ill spouse.  There was no dispute that her husband suffered from serious medical conditions, including gout, chronic liver and heart disease and kidney problems.

Ms. Tayag later sought to take a 7-week leave to go with her husband on a faith-healing pilgrimage to the Philippines.  Her husband’s doctor submitted a note indicating that she needed the leave because her husband needed physical assistance on a regular basis.  However, her husband’s cardiologist provided an FMLA certification indicating that Ms. Tayag’s husband was “presently . . . not incapacitated.”

Not surprisingly, Ms. Tayag’s employer denied her leave request and, when she failed to respond to her employer’s messages directing her to return to work (because she was on her trip), Ms. Tayag’s employment was terminated.

Ms. Tayag filed claims for interference and retaliation under the FMLA.  Ms. Tayag argued that the faith-healing pilgrimage constituted medical care under the FMLA and that she was needed to care for her spouse while he received such medical care. 

The court disagreed, finding that during her trip, Ms. Tayag and her husband prayed, went to Mass, spoke with others in the pilgrimage and visited other churches and family.  No conventional medical treatment was provided.  Ms. Tayag’s husband saw no doctors or healthcare providers on the trip and his own cardiologist said he was not incapacitated.  The court found that FMLA leave to care for an immediate family member does not extend to vacations in which no medical care is provided. 

Bottom line in this case:  No medical care, no FMLA.  But at least Ms. Tayag got a nice vacation.

This Blog should not be construed as legal advice or as pertaining to any particular factual scenarios.


FMLA Compliance

Updates on key cases and trends in FMLA leave administration from the Duane Morris employment lawyers.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.