Employer wins FMLA retaliation case

Termination was not related to leave

Posted February 7, 2019

Employers are prohibited from interfering with an employee’s FMLA rights or retaliating against an employee for exercising those rights. Employers are not, however, prohibited from taking a negative employment action against an employee for reasons other than FMLA leave, even if an employee has taken FMLA leave.

Such was the case of Adrian (fictitious name), an employee who worked for an airline that allowed certain family members to join in on company travel privileges. Employees were to have a log of people who had taken advantage of the privileges and, if asked, provide documentation supporting the family relationship. If employees violated this privilege, they were terminated.

When Adrian was chosen for a random audit of his travel logs identifying his family members, the auditor found some questionable entries. The HR director got involved, and tried to schedule an interview with Adrian, but noticed that he had been off work for a couple weeks. Investigating further, she learned that Adrian had been in the hospital due to kidney failure. Logically, the interview was postponed.

Weeks after Adrian returned to work, the interview was held, and Adrian could not produce evidence that all the people on his travel log met the required family relationship. The employer did more investigating and determined that termination was appropriate for violating the travel privileges. More than a month after Adrian returned to work, he was terminated.

He filed suit, arguing that the employer retaliated against him because he took FMLA leave, since the termination was near the date of his FMLA leave. The employer argued that the termination was based on the policy violation and had nothing to do with Adrian’s FMLA leave; the two were not connected, even though the timing was unfortunate.

The court found in favor of the employer, indicating that the employer had a nondiscrininatory reason for the termination and it was not pretext in an attempt to hide a retaliatory reason.

While taking a negative employment action when the FMLA could be involved can have its fair share of risks, employers may proceed to do so in situations where they have solid evidence that the reason for the action had nothing to do with FMLA rights. Sometimes, if the decisions makers have no knowledge of a particular employee’s FMLA leave, the employer can have even stronger standing that the action and the FMLA leave were not connected. Without such evidence, an employer’s argument can be weakened.

Nieves v. Envoy Air Inc., 6th Circuit Court of Appeals, No. 18-1127, January 14, 2019

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc.


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