Threat to Squeeze worker's Testicle Helps Drive Retaliation Case to Trial


Merrimack, NH (–Even if a supervisor’s verbal abuse predates an employee’s FMLA leave, the escalation of abuse when an employee returns to work can help link it to the worker’s protected status. 

The fact that a supervisor’s alleged comments to the employee in Weed v. Spraying Sys., Co., No. 21-2813 (D. N.H. 07/05/22), became graphically violent on the first day of the employee’s return from leave helped ensure a jury would hear the case. 

The employee worked as a weld inspector for a manufacturer of spray nozzles. He claimed that his direct supervisor verbally harassed him. That harassment, he alleged, intensified, taking on a violent tone, after he took FMLA leave for a hernia and a subsequent swollen testicle. 

According to the inspector, when he returned to work, his supervisor was irate that he had been out so long and threatened to "grab his swollen testicle and squeeze it.” The supervisor also reportedly urged him to quit, saying the person who replaced him in his absence did just fine. 

On another occasion, when the inspector complained that chemical fuels in the facility were not being adequately ventilated, the supervisor allegedly became extremely agitated, moving within a foot from the inspector, balling his fists, sticking out his chest, and yelling at him. After additional such incidents, the inspector claimed, his stress rose, and he was in constant fear. 

Finally, tired of the abuse, the inspector resigned. He sued the company for retaliating against him based on his FMLA status. The company, in its turn, requested summary judgment. 

The court noted that to succeed on his retaliation claim, the inspector had to prove that the supervisor harassed him because he exercised his FMLA rights.  

The court acknowledged that the alleged abuse began prior to the employee informing the company of his condition and taking leave. It also conceded that some of the behavior may have been unrelated to the inspector’s protected status. Finally, it noted that the supervisor, in engaging in the alleged harassment, never mentioned the inspector’s protected status. 

Nevertheless, the inspector made out a case that was sufficient to go to a jury. In making that determination, the court relied on the following points, reflecting the types of facts and considerations that can push an employee’s case to trial. 



Even if the abuse predated the inspector’s medical leave, it allegedly intensified after the inspector exercised his FMLA rights, taking on a violent tone. The supervisor “cannot benefit from the fact that he was cruel to [the inspector] before discriminating and retaliating against him because of his disability and leave,” the court wrote. 


Even if some of the conduct was unrelated to the inspector’s protected status, the inspector alleged that on the day of his return, the supervisor’s aggressive comments were accompanied by a complaint about how long the inspector was absent. That comment helped link the alleged abuse to the employee’s FMLA leave. 


The timing of the escalation in abuse was a factor in the case, the court found. This was not a situation where the harassment began months after an employee’s return to work. In this case, it happened the same day. “[T]his fact alone goes a long way toward establishing his prima facie case,” the court wrote. 


A retaliation claim is not dependent on an individual using specific words or mentioning the employee’s protected status. Thus, the inspector could establish a viable case even if the supervisor made no explicit mention of his protected activity or status. 


The company provided no other explanation about why the supervisor verbally attacked the inspector, the court noted. 


Another factor that helped the inspector’s case, the court observed, was that at the time of his resignation, the company had no intention of demoting or terminating the employee. “It was quite the opposite; [the general manager] believed [the inspector] was doing ‘a great job,’” the court wrote. 

Relying on the above reasoning, the court held that a reasonable jury could find that the supervisor’s behavior was motivated by retaliatory animus regarding the inspector’s request for FMLA leave.  

The court denied the company summary judgment on the inspector’s claim. 

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