session 1989711 640

City Worker Tortured by Calif. Bar Exam Establishes FMLA Retaliation

10 Aug, 2023 Chris Parker

session 1989711 640

Los Angeles, CA ( – A variety of factors can influence the success of a worker’s FMLA retaliation claim, but they often revolve around timing, performance history, and supervisors’ reactions to the employee’s leave requests.

That was the case in Buckman v. City of Los Angeles, No. B305192 (Cal. App. Ct. 08/02/23, unpublished), in which a project coordinator for the city's Housing and Community Investment Department sought leave for her severe anxiety.

While she worked for the city, the coordinator was hoping to pass the bar exam. Her alleged reaction to studying for that exam was not unusual: bleeding, vomiting, diarrhea, not eating, not sleeping, chest pains, dizziness, nightmares, anxiety, and panic attacks. But her symptoms were reportedly exacerbated by challenges at work.

On her psychologist’s recommendation, the coordinator went on approved FMLA leave beginning Jan.10, 2017. On the day she returned, March 1, three supervisors, having apparently decided to terminate the coordinator, discussed the timing of the termination. The city officially terminated her on March 9.

The coordinator sued the city for FMLA retaliation and won. The city appealed, arguing that the coordinator failed to show she was terminated because she took FMLA leave.

The court explained that to establish FMLA retaliation, a worker must show: 1) she was eligible for FMLA leave; 2) she exercised her rights under FMLA; and 3) the employer terminated or otherwise subjected her to an adverse employment action because she exercised those rights. When an adverse action follows hard on the heels of protected activity, that’s a strong indicator of retaliation, the court remarked.

Once the worker makes her initial case, the court added, the employer may give a legitimate, non-retaliatory reason for firing the worker. If the worker cannot show that reason is a pretext, or cover for retaliation, then she loses the case.

Here, the appeals court found several solid reasons for agreeing with the trial court that the coordinator established her case:

The timing of decision: The court pointed out that handwritten notes at the March 1 meeting from one of the decisionmakers showed the company made its decision to fire the coordinator the very day she returned from leave.

Negative reactions to leave: A supervisor who recommended the termination and presided over a related grievance appeal in which the coordinator stated that she was "bleeding out of every orifice" reportedly responded by saying: "Well she'll file for FMLA now.” Also, a city commissioner allegedly expressed frustration that the coordinator had taken leave.

Inconsistent reasons: The city provided inconsistent reasons for terminating the coordinator. In addition, it changed its reasons during the course of litigation.

Positive performance history: Prior to taking leave, the coordinator never received negative performance reviews or disciplinary warnings. In her only performance review, she received an overall rating of “outstanding.”

Finding substantial evidence supported the trial court’s ruling, the appeals court affirmed the decision.

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