Best Ohio FMLA Retaliation Lawyer Answer: Do I have to be terminated to have a claim for FMLA retaliation? Can I sue if my boss treats me badly after I come back from FMLA leave? If I’m fired two days after requesting medical leave, can I sue for wrongful termination under the Family and Medical Leave Act?
The Family and Medical Leave Act (“FMLA“) is a federal law that was passed in 1993 to give eligible employees up to 480 hours (which equals 12 weeks) of job-protected leave for family and medical reasons during a 12-month period. While employees are not paid during their FMLA leave, they are entitled to get their jobs back when they return from the medical leave. Employees are eligible for FMLA if they have been employed at the same employer for at least one year, and have worked at least 1,250 hours in the previous 12-month period.
Employees may use FMLA to take time off of work for the following reasons:
- As necessitated by the employee’s own serious health condition;
- Birth or adoption of a child;
- To provide care relating to a serious health condition of an employee’s immediate family member (husband, wife, parent, child under 18 or older than 18 if that child is not capable of self care due to mental or physical disability parent);
- To provide care for a family member or next of kin that became injured or ill arising out of serving as an active duty service member (instead of 12 weeks for the other reason on this list, up to 26 weeks can be taken for this qualifying reason);
- To attend to qualifying exigencies related to a family member who is currently deployed or has received notice of an impending deployment to a foreign country in the Armed Forces, National Guard or Reserves.
“Serious Health Condition” has been defined under the FMLA as any of the following; (a) an illness, injury, impairment, or physical or mental injury or condition involving inpatient or overnight medical care in a hospital, hospice, or residential medical care facility; (b) or continuing medical treatment by a health care provider, including your doctor that includes
incapacity lasting more than three days and involving treatment two or more times by a health care provider or treatment by a health care provider followed by a prescribed course of medical care.
Our experienced FMLA attorneys have extensively written in past about FMLA leave and the rights that employees have to take unpaid leave to recover from serious physical and psychological conditions or to take care of sick family members. (See Can I Sue If I Was Fired The Day That I Returned From FMLA Leave?; Can My Boss Retaliate Against Me Because I Used FMLA For Alcohol Dependency?; Do I Have A Claim For FMLA Retaliation?; What Hours Count Towards My FMLA Eligibility?; Can My Job Deny Me Part Time Hours Under The FMLA?; and Can My Job Block Me From Coming Back From FMLA Leave?).
In an effort to make sure that workers who take this leave do so without fear of reprisal or retaliation from their employers, the FMLA makes it unlawful for an employer to take an “adverse action” against an employee because the employee took a leave under this Act. From our experience, the most obvious form of adverse action is termination, but FMLA retaliation claims are not limited to retaliation. Others are subtle, and it takes the skill of an exclusive employment law firm like ours to sift out adverse employment actions that can sustain an FMLA retaliation claim.
To understand how employers punish employees for taking a leave under this Act, consider Crawford v. JP Morgan Chase & Co.. In that case, Paula Crawford, an employee who had worked for Chase Bank for more 10 years and who was suffering from severe anxiety and depression, applied FMLA leave and was granted time off. When she returned, her employer informed her that her position had been transferred to a different location and as a result, she had been reassigned to a lesser position but with the same pay and benefits. Subsequent to this demotion, Crawford took another FMLA leave to nurse the same conditions years later. And again, when she returned, she was told that her position had been consolidated due to budgetary reasons, and that she would have to accept what would amount to another demotion. Fearing that she was being punished for taking FMLA leave, Crawford sued Chase Bank. In an attempt to explain away its retaliatory behavior and potentially convince the trial court to dismiss Crawford case, Chase Bank argued that Crawford’s job reassignments did not amount to “adverse actions” since Crawford was given the same pay and benefits after the alleged demotions. But what Chase Bank failed to reveal was that by demoting Crawford, Chase Bank had diminished Crawford’s chances of career advancement. In disagreeing with Chase Bank, the Sixth Circuit Court of Appeal, which covers Ohio, held that because a reasonable person could view Chase Bank’s reasons for eliminating Crawford’s position as pretexts for unlawful FMLA retaliation, summary judgment (which would be a win for the employer and have her case tossed out of court before it got to a jury) was not a just result. First, the Court set up the law for FMLA retaliation claims:
The FMLA provides that “[i]t shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2). To establish an initial prima facie case of retaliation, a plaintiff must show the following by a preponderance of the evidence: (1) that she engaged in an activity protected by the FMLA; (2) that the defendant knew of this exercise of her protected rights; (3) that defendant thereafter took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action. Arban, 345 F.3d at 404. The employer’s motive is an integral part of the analysis. Edgar v. JAC Prods., 443 F.3d 501, 508 (6th Cir. 2006).
The first two elements are not at issue. As for the third element, Crawford asks us to adopt the Title VII definition of adverse employment action set forth in Burlington Northern and Santa Fe Railway. Co. v. White, 548 U.S. 53, 67-68 (2006): “[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Page ID 26 (quoting Burlington, 548 U.S. at 67-68.). For the forthcoming reasons, we adopt this definition in the FMLA context.
Applying this law, the court reasoned that there were enough facts in the case for a jury to rule that Crawford’s demotions amounted to adverse employment action and thus could sustain a claim for FMLA retaliation:
Here, Crawford has presented evidence that, upon returning from FMLA leave, she was transferred to a lesser position from Project Manager I to Quality Analyst II. Crawford argues that her new position constituted a demotion because the position included more clerical duties, did not require the same level of expertise, and she was required to report to a former peer. There is evidence in the record that suggests that Chase wanted to eliminate Crawford’s position, but there was no business reason to justify doing so. Even if we were to assume, arguendo, that Crawford was transferred to a seemingly lateral position, the change in job responsibilities support an inference of an adverse employment action. See Fisher v. Wellington Exempted Village Schs. Bd. of Educ., 223 F. Supp. 2d 833, 843 (N.D. Ohio 2001) (explaining that a lateral transfer is actionable as an adverse employment action if the conditions of the transfer would have been objectively intolerable to a reasonable person and changes in job responsibilities should be considered in this analysis). An email exchange among high-level supervisors demonstrates that there was a change in Crawford’s responsibilities in the new role and that these changes might cause Crawford to decline the new position and resign. As such, the change in positions shortly after Crawford’s return from FMLA leave, under these circumstances, could deter a reasonable employee in Crawford’s position from exercising her FMLA rights. We find that there is a genuine issue as to whether Crawford suffered an adverse employment action when Chase transferred her to a lesser position after she returned from FMLA leave.
With respect to the fourth element, Crawford relies, in part, on the proximity in time between her return from FMLA leave and her transfer. See Skrjanc, 272 F.3d at 315(finding that plaintiff’s reliance on the proximity in time between his request for leave and his discharge constituted a showing of a causal connection between the protected activity and the adverse employment action). Crawford was transferred to a new position shortly after returning from FMLA leave. “Such temporal proximity is `unduly suggestive’ and satisfies the causation element of plaintiff’s prima facie case at the summary judgment stage.” Parker, 234 F.Supp. 2d. at 492 (citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279-80 (3d Cir. 2000). Thus, Crawford has satisfied her burden of setting forth a prima facie case.
As the holding in Crawford reveals, “adverse action” in FMLA retaliation cases come in many colors. Some may appear to the untrained eyes as business as usual. But a closer look may reveal the evil intentions of certain disloyal employers.
If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA) or are being retaliated against for taking medical leave, you should call the right attorney as quickly as possible to schedule a free and confidential consultation. The phone number to contact an Ohio attorney for FMLA help is (216) 291-4744. While you focus on your family medical needs, let our FLMA attorneys focus on your medical leave rights.
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