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Case Lesson: How Workers Try to Connect Negative Employment Decisions to FMLA Leave

31 Jul, 2023 Chris Parker

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Doylesown, PA ( – One of the main places where a worker’s FMLA retaliation case falls apart is where the worker tries to connect his FMLA request to his termination (or other negative employment action).

This article describes the three main phases in an FMLA retaliation case, with a special look at the factors courts consider when determining if the employer’s adverse action was an intentional response to the worker’s exercise of his FMLA rights.

Phase 1

To establish an initial FMLA retaliation claim, an employee must show:

--> He invoked his right to FMLA leave;
--> He suffered an adverse employment action; and
--> The adverse action was causally related to his invocation of rights.

Phase 2

The employer must then articulate a legitimate, nondiscriminatory reason for the adverse employment action.

Phase 3

If the employer has articulated such a reason, the ball is back in the employee’s court. He must demonstrate that the reason the employer gave was just a pretext, or cover, for discrimination.

Causal Relationship Between FMLA Request and Negative Employment Action

Courts look at a variety of factors in deciding whether the employer’s action of terminating the employee (or taking another adverse action) was caused the employee asking for FMLA leave.

A case involving a county IT director in Pennsylvania lays out some of the factors courts consider, while also highlighting some of the things the employer did right during its interactions with the worker. Jacobs v. Bucks County, No. 22-2327 (3d Cir. 07/10/23).

Timing: Courts look at whether the employer took the adverse action shortly after the FMLA request. In Jacobs v. Bucks County, the county fired the director 42 days after his request for FMLA leave. That amount of time wasn’t a particularly strong factor in terms of demonstrating a causal connection, according to the court.
Antagonism: Courts look at whether there is evidence of the employer being antagonist concerning the employee’s FMLA requests. Such evidence could be a comment made by a supervisor that the worker “is always out sick,” for instance, or “better get it together.” In the Jacobs case, other than someone rolling her eyes at a meeting concerning the director’s alleged misconduct, there was no such evidence.
Prior decisions about leave: Evidence of prior FMLA denials may help show a causal connection, if those denials appear unfounded. In the Jacobs case, the county had granted the director FMLA leave several times. The one time it denied him leave was when it failed to received a required medical form.
Inconsistent explanations: If an employer changes its reasons for taking the negative employment action, that may be evidence of causation. In the Jacobs case, the county always stuck to the same reasons: the director was dishonest about his business relationship with a state employee, and insubordinate in continuing to use that individual for work after being told not to dos so.

The above three factors do not constitute an exhaustive list. Courts generally consider the circumstances as a whole. They will consider any evidence that suggests the employer had a retaliatory animus when taking the adverse action.

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