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Lawyers For Retaliation Victims
The Employee's Voice And Advocate

OCALA, FL RETALIATION LAWYERS
SERVING CENTRAL FLORIDA EMPLOYEES

Having litigated retaliation cases in Florida courts for more than twenty years, our Marion County, Florida retaliation attorneys know that employers frequently punish employees who exercise their employee rights. In far too many cases, our Ocala, Florida retaliation lawyers have learned, employers target employees who exercise their employee rights for retaliation by scrutinizing their work performance, disciplining them, reducing their hours, cutting their pay, increasing their workload, giving them undeserved negative performance evaluations, and demoting them. After subjecting employees to retaliatory and antagonistic behavior for invoking their employee rights, an employer’s punishment often culminates in the termination of employees who exercise their employee rights. Based on Ocala, Florida and representing employees throughout Central Florida, our Marion County, Florida retaliation attorneys are dedicated to fighting for employees who have been punished for exercising their employee rights and deprived of the job security guaranteed by federal law.

Family Medical Leave Act (FMLA)

In 1993, the U.S. Congress enacted the Family Medical Leave Act (FMLA), as explained by the U.S. District Court for the District of Maine in Dressler v. Community Service Comm., Inc., 278 F.Supp.2d 17 (D. Me. 2003), because if found “there is inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods.” In passing the FMLA, as the U.S. Ninth Circuit Court of Appeals observed in Bachelder v. American West Airlines, Inc., 259 F.3d 1112 (9th Cir. 2001), “Congress concluded that it is unfair for an employee to be terminated when he or she is struck with a serious illness and is not capable of working.” In order to provide employees with job security when they are incapable of working for medical reasons, the FMLA provides employees with a series of substantive rights, including the right to take up to twelve weeks of unpaid leave each year for their own serious health condition or to care for immediate family members with a serious health condition, and the right to reinstatement after taking FMLA leave.

The FMLA, as explained by the U.S. District Court for the Eastern District of Kentucky in Collins v. Dan Cummins Chevrolet-Buick, Inc., 2015 WL 4603108 (E.D. Ky. July 29, 2015), “is designed to protect employees.” In order to preserve the availability of FMLA rights and protect employees who avail themselves to FMLA rights, the FMLA forbids employers from retaliating against employees who exercise their FMLA rights. In protecting employees from retaliation for exercising their FMLA rights, the FMLA also prohibits employers from using the taking of FMLA leave as a negative factor in employment decisions, such as promotion, disciplinary action, or discharge.

FMLA Retaliation Claims

In Brungart v. Bellsouth Telecomm., Inc., 231 F.3d 791 (11th Cir. 2000), the U.S. Eleventh Circuit Court of Appeals explained that “in addition to providing specified employees the right to certain leave, the FMLA also protects employees from being discriminated against by their employers for exercising or attempting to exercise the rights it provides.” Under the FMLA, it is unlawful for an employer to “discharge or in any manner discriminate against any individual for opposing any practice made unlawful” by the FMLA. The FMLA also prohibits employers from discriminating against employees who have used FMLA leave. As observed by the U.S. First Circuit Court of Appeals in Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325 (1st Cir. 2005), courts have interpreted these FMLA provisions to prohibit employers from retaliating against employees for exercising their FMLA rights. Thus, as pointed out by the Colburn court, “an employee may [ ] bring suit against the employer under a retaliation theory,” including a claim for retaliatory discharge when an employee is fired for exercising FMLA rights.

“FMLA retaliation claims,” as the U.S. Sixth Circuit Court of Appeals explained in Boileau v. Capital Bank Financial Corp., 646 Fed.Appx. (6th Cir. 2016), “impose liability on employers that act against employees specifically because those employees invoked their FMLA rights.” To establish a FMLA retaliation claim, as determined by the U.S. District Court for the Middle District of Alabama in Bradley v. Army Fleet Solutions, LLC, 54 F.Supp.3d 1272 (M.D. Ala. 2014), an employee must “demonstrate that his employer intentionally [retaliated] against him in the form of an adverse employment action for having exercised an FMLA right.” “The central issue raised by a retaliation theory,” as the Sixth Circuit observed in Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274 (6th Cir. 2012), “is whether the employer took the adverse action because” the employee exercised an FMLA right “or for a legitimate, [non-retaliatory] reason.” Thus, an employee bringing a retaliation claim, as the Eleventh Circuit noted in Strickland v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199 (11th Cir. 2001), must establish that the employer’s adverse employment action was “motivated by an impermissible retaliatory [ ] animus.”

Proving FMLA Retaliation Claims

In order to establish a prima facie FMLA retaliation claim, as determined by the U.S. Eighth Circuit Court of Appeals in Phillips v. Mathews, 547 F.3d 905 (8th Cir. 2008), an employee must demonstrate that: (1) “she exercised rights” afforded by the FMLA; (2) “she suffered an adverse employment action”; and (3) “there was a causal connection between her exercise of [FMLA] rights and the adverse employment action.” “A valid prima facie case,” as the U.S. Eleventh Circuit Court of Appeals observed in Walker v. Mortham, 158 F.3d 1177 (11th Cir. 1998), “creates a presumption that [retaliation] has occurred.” Thus, as explained by the U.S. Sixth Circuit Court of Appeals in Rose v. Nat’l Cash Register Corp., 703 F.3d 225 (6th Cir. 1983), “to say that an [employee] has established a prima facie case is simply to say that he has produced sufficient evidence to present his case to the jury.”

Under the FMLA, an employee exercises FMLA rights in a broad array of circumstances, including: giving notice of an intention to take FMLA leave; requesting FMLA leave; taking FMLA leave; and seeking reinstatement after taking FMLA leave. An employee also exercises FMLA rights when he or she requests intermittent or reduced schedule leave under the FMLA. An employee further exercises FMLA rights when he or she requests to go from intermittent or reduced scheduled leave to block leave under the FMLA. When an employee exercises an FMLA right, the employee is deemed to have engaged in “protected activity” under the FMLA and is protected from retaliation by the FMLA.

In Burlington N. & Santa Fe R.R. Co. v. White, 548 U.S. 53 (2006), the U.S. Supreme Court defined an adverse employment action in the retaliation context as an act that “well might have dissuaded a reasonable worker” from exercising an FMLA right. Thus, if an employment decision is reasonably likely to deter an employee from exercising an FMLA right, then the employment decision constitutes an adverse employment action. Adverse employment actions include ultimate employment decisions, such as failure to hire, demotion, failure to promote, layoff, and discharge. Adverse employment actions also include employment decisions that inflict direct economic harm against an employee, including a reduction in pay, reduction in hours, or suspension without pay. Depending on the facts and circumstances of a particular case, the following employment decisions may constitute an adverse employment action: disciplinary action; an undeserved negative performance evaluation; an increased workload; elimination of job duties; disadvantageous job transfer; and work schedule changes.

To establish a causal connection between an employee’s exercise of an FMLA right and the adverse employment action, as the U.S. Eleventh Circuit Court of Appeals determined in Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453 (11th Cir. 1998), an employee “need only show” that the employee’s exercise of FMLA rights and the adverse employment action “are not completely unrelated.” A relationship between an employee’s exercise of an FMLA right and the adverse employment action is often found where there is close temporal proximity between the two events.

Once an employee establishes a prima facie case of FMLA retaliation, the employer must articulate a legitimate, non-retaliatory reason for the adverse employment action. If the employer comes forward with evidence of a legitimate, non-retaliatory reason, the employee must then point to some evidence that the employer’s proffered reason for the adverse employment action is a pretext for retaliation. The employee may prove pretext by showing that a retaliatory reason more likely motivated the employer or by showing that the employer’s proffered reason is unworthy of belief.

Employee’s Eligibility For FMLA Leave

Employees seeking to avail themselves of FMLA rights must establish they are an “eligible employee” under the FMLA. As explained by the U.S. District Court for the District of Columbia in Dougherty v. Cable News Network, 396 F.Supp.3d 84 (D. D.C. 2019), “in order to be eligible for [leave under] the FMLA, an employee must (1) have been employed by the employer for at least 12 months, and (2) have been employed for at least 1,250 hours of service during the twelve-month period immediately preceding the commencement of the leave.” “The determination of whether an employee meets the hours of service requirement,” as the Dougherty court noted, “is made at the date the FMLA leave is to start.” In order for employees to be an “eligible employee” under the FMLA, employees must also show that they were employed at a worksite where at least 50 employees are employed by the employer, or that their employer employed 50 employees within 75 miles of that worksite.

Employee’s Entitlement To FMLA Leave

An employee eligible for leave under the FMLA is entitled to take a total of twelve workweeks of leave, without pay, during any twelve-month period for any one of the following reasons:

  • The birth of a son or daughter of the employee and to care for the newborn child;
  • The placement of a son or daughter with the employee for adoption or foster care;
  • In order to care for the spouse, son, daughter, or parent of the employee, if such spouse, son, daughter, or parent has a serious health condition; and
  • Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job.

Each of these reasons constitutes a qualifying reason for FMLA leave. Under any of these circumstances, an employee has a qualifying reason for FMLA leave and is entitled to take FMLA-protected leave.

“Under the FMLA,” as explained by the U.S. Third Circuit Court of Appeals in Capps v. Mondelez Global, LLC, 847 F.3d 144 (3d Cir. 2017), “when an employee returns from leave, the employer must restore the employee to the same position or equivalent position held by the employee when the leave commenced, as well as restore the employee with equivalent benefits and conditions of employment.” In guaranteeing employees the right to return to work after FMLA leave ends, the FMLA prohibits employers from firing employees because they took FMLA leave.

Intermittent & Reduced Schedule Leave

As the U.S. District Court for the Eastern District of Michigan observed in Reeder v. County of Wayne, 177 F.Supp.3d 1059 (E.D. Mich. 2016), the “FMLA does not limit eligible employees to requesting only periods of block leave, but also allows employees to take intermittent or reduced schedule leave.” Intermittent leave allows an employee to take leave intermittently when medically necessary due to a serious health condition, such as to attend appointments with a health care provider for necessary treatment of a serious health condition. As explained by the U.S. Sixth Circuit Court of Appeals in Adams v. Honda of Am. Mfg., Inc., 111 Fed.Appx. 353 (6th Cir. 2004), “intermittent leave is taken in separate blocks of time for a single [FMLA]-qualifying reason.” Under the FMLA regulations, “a reduced schedule leave is a schedule that reduces an employee’s usual number of working hours per workweek or hours per workday.” “An employee with a serious health condition,” as pointed out by the Sixth Circuit in Festterman v. City of Wayne, 611 Fed.Appx. 310 (6th Cir. 2015), “may take intermittent leave or establish a reduced work schedule under the FMLA without fear of adverse employment actions taken by the employer as a result.”

Serious Health Condition Under FMLA

The FMLA entitles an employee to take twelve weeks off from work, without pay, because of the employee’s own serious health condition that makes the employee unable to perform the functions of the employee’s job, or to care for a spouse, son, daughter, or parent who has a serious health condition. The FMLA defines a “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves: (1) inpatient care in a hospital, hospice, or residential medical care facility; or (2) continuing treatment by a health care provider.

Under the FMLA regulations, a serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

  • A period of incapacity of more than three consecutive, full calendar days, and involves either (a) treatment by a health care provider at least twice within thirty days of the first day of incapacity, unless extenuating circumstances exist, or (b) treatment by a health care provider at least once that results in a regimen of continuing treatment under the supervision of a health care provider. The requirement of treatment by a health care provider means an in-person visit to a health care provider. Moreover, the first (or only) in-person visit must take place within seven days of the first day of incapacity;
  • Any period of incapacity due to pregnancy, or for prenatal care;
  • Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which (a) requires at least two visits a year for treatment by a health care provider, (b) continues over an extended period of time, and (c) may cause episodic rather than a continuing period of incapacity; or
  • A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective.

Under the FMLA regulations, the term “incapacity” means an inability to work, attend school, or perform other regular daily activities due to the serious health condition, treatment for the serious health condition, and recovery from the serious health condition. The FMLA regulations also provide that an employee is unable to perform the functions of the employee’s job when a health care provider finds that the employee is unable to work at all or is unable to perform any one of the essential functions of the employee’s job. The FMLA regulations further provide that an employee who must be absent from work to receive medical treatment for a serious health condition is considered to be unable to perform the essential functions of the position during the absence for treatment.

Notice Of Need For FMLA Leave

The FMLA does not grant employee’s the right to take leave unconditionally. Rather, the FMLA requires employees to give their employer notice of the need for FMLA leave. Notice under the FMLA, as observed by the U.S. District Court for the Southern District of Alabama in Moore v. GPS Hospitality Partners IV, LLC, 383 F.Supp.3d 1293 (S.D. Ala. 2019), “must satisfy two criteria—timing and content—and the parameters of these criteria depend on whether the need for leave is ‘foreseeable’ or ‘unforeseeable.’ ” In order to prevail on a FMLA retaliation claim therefore, an employee must demonstrate that he or she gave the employer timely and adequate notice of a potentially FMLA-qualifying reason for leave.

Employee’s Timely FMLA Notice

Under the FMLA regulations, if an employee’s need for leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment for a serious health condition of the employee or family member, the employee must give the employer at least thirty days advance notice of the need for leave. However, the FMLA regulations also provide that if thirty days is not practicable, such as because of a lack of knowledge of approximately when leave will be required to begin, then notice must be given “as soon as practicable. The FMLA regulations define the phrase “as soon as practicable” to mean “as soon as both possible and practicable, taking into account all of the facts and circumstances of the individual case.”

Under the FMLA regulations, if an employee’s need for leave is unforeseeable, the thirty-day requirement does not apply. Instead, an employee whose need for leave is unforeseeable must provide notice to the employer “as soon as practicable” under the facts and circumstances of the case. When the need for leave is unforeseeable, notice of an employee’s need for leave may be provided by the employee’s spokesperson, such as a spouse, adult family member, or other responsible party, if the employee is unable to do so personally.

Employee’s Adequate FMLA Notice

In order to provide adequate notice of a FMLA-qualifying reason for leave, as explained by the U.S. District Court for the Eastern District of Michigan in Combs v. Quest Specialty Coating, LLC, 2013 WL 1506523 (E.D. April 12, 2013), “an employee does not have to expressly assert a right to take leave under the FMLA.” “Indeed,” the Combs court pointed out, “an employee need not mention the FMLA at all.” Instead, as the U.S. Sixth Circuit Court of Appeals determined in Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713 (6th Cir. 2003), “an employee gives his employer sufficient notice that he is requesting leave for an FMLA-qualifying [reason] when he gives the employer enough information for the employer to conclude that an event described in the FMLA has occurred.” In other words, as the Sixth Circuit observed in Anderson v. McIntosh Onstr., LLC, 597 Fed.Appx. 313 (6th Cir. 2015), “to satisfy the FMLA’s notice requirement, an employee must request leave and provide enough information for her employer to know that the FMLA applies to the request.”

In Rask v. Fresenius Med. Care N. Am., 509 F.3d 466 (8th Cir. 2007), the U.S. Eighth Circuit Court of Appeals pointed out that the FMLA regulations “make it very east for [an employee] to give notice of her intent to take leave.” When an employee’s need for leave is foreseeable, the FMLA regulations state that the employee must provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave. When an employee’s need for leave is unforeseeable, the FMLA regulations provide that the employee must provide sufficient information for an employer to reasonably determine whether the FMLA might apply to the leave request.

Eligible & Entitled To FMLA Leave

In the FMLA retaliation context, courts have determined that employees must establish they were eligible for FMLA leave and actually entitled to FMLA leave in order to establish an FMLA retaliation claim. For example, an employee who has not been employed by the employer for at least twelve months and actually worked a minimum of 1,250 hours in the previous twelve months immediately preceding the commencement of his or her proposed FMLA leave, is not eligible for FMLA and cannot establish a retaliation claim. Similarly, an employee who does not have a serious health condition is not entitled to FMLA leave and cannot establish a retaliation claim. As explained by the U.S. District Court for the Middle District of Florida explained in Morehardt v. Spirit Airlines, Inc., 174 F.Supp.2d 1272 (M.D. Fla. 2001), “[w]hen the employee takes leave, or requests to take leave,” that he or she not eligible for or entitled to take under the FMLA, “the employee cannot be deemed to have [exercised an FMLA right] and, therefore, termination by the employer in such a circumstance cannot be grounds for a retaliation claim under the FMLA.”

In order to be eligible for FMLA leave and entitled to take FMLA leave, an employee must demonstrate that:

  • He or she was employed by the employer for at least twelve months;
  • He or she was employed for at least 1,250 hours of service during the twelve-month period immediately preceding the commencement leave;
  • He or she was employed at a worksite where at least 50 employees were employed by the employer, or that the employer employed 50 employees within 75 miles of that worksite;
  • He or she suffered from a serious health condition, or his or her immediate family member suffered from a serious health condition, or he or she needed leave for the birth of a son or daughter and to care for the newborn child, or he or she needed leave for the placement of a son or daughter for adoption or foster care; and
    He or she gave the employer timely and adequate notice of the need for FMLA leave.

As the decision by the U.S. District Court for the Eastern District of Michigan in Edwards v. ALDI, Inc., 310 F.Supp.3d 803 (E.D. Mich. 2018) demonstrates, many FMLA retaliation claims fail because the employee could not demonstrate a serious health condition and, thus, was not entitled to FMLA leave in the first place. In that case, the employee made a request in September 2015 to take FMLA leave in October 2015 for an ear condition. However, no medical provider determined that the employee could not work because of her ear condition. The employee also admitted during the course of the litigation that her ear condition did not impact her ability to perform her job as store manager or her ability to perform daily tasks outside of work. On October 8, 2015, the employee was fired for a “cash handling” issue. Following her discharge, the employee brought an FMLA retaliation claim asserting that she was fired in retaliation for exercising her FMLA rights by requesting FMLA leave.

The threshold issue before the trial court was whether the employee’s ear condition constituted a serious health condition which entitled her to take FMLA leave. If the employee showed that her ear condition was a serious health condition, then she was entitled to FMLA leave and was protected from retaliation for requesting FMLA leave. In other words, as the trial court observed, an employee does not exercise FMLA rights and is not protected from retaliation by the FMLA when requesting time off from work “where a serious health condition has not been demonstrated.”

The trial court determined that the employee’s ear condition was not a serious health condition because her ear condition did not result in a period of incapacity where she was unable to work or perform regular daily activities for more than three consecutive calendar days. In support of its conclusion, the trial court noted that no medical provider ever determined the employee could not work because of her ear condition and that the employee admitted her ear condition did not prevent her from performing regular daily activities. Because the employee’s ear condition was not a serious health condition for purposes of the FMLA, the employee was not entitled to FMLA leave for ear condition and the employee was not exercising FMLA rights when she requested time off from work due to her ear condition. Consequently, the trial court dismissed the employee’s FMLA retaliation claim.

Employee’s Right To Reinstatement

“The FMLA,” as explained by the U.S. District Court for the Southern District of Ohio in Porter v. Tri-Health, Inc., Case No. 16-cv-00978 (S.D. Ohio Nov. 2, 2018), “protects the right to restoration to work.” An employee who takes FMLA leave is entitled to be reinstated to the same position the employee held when leave commenced, or to an equivalent position, on returning to work from FMLA leave. The FMLA regulations provide that an employee is entitled to such reinstatement even if the employee has been replaced or the employee’s position has been restructured to accommodate the employee’s absence. Thus, as the U.S. Sixth Circuit Court of Appeals observed in Demyanovich v. Cadon Plating & Coatings, LLC, 747 F.3d 419 (6th Cir. 2014), the “FMLA does not provide leave for leave’s sake, but instead provides leave with an expectation that an employee will return to work after the leave ends.”

“Once an employee exceeds his twelve weeks . . . of FMLA leave,” as explained by the Sixth Circuit in Coker v. McFaul, 247 Fed.Appx. 609 (6th Cir. 2007), “additional leave in the twelve month period is not protected by the FMLA, and the termination of the employee will not violate the FMLA.” Thus, as the Sixth Circuit pointed out in Hicks v. Leroy’s Jewelers, Inc., 225 F.3d 659 (6th Cir. 2000), “an employee on approved FMLA leave has no right to job restoration under the [FMLA] if she fails to return to work twelve weeks after her leave began.”

Before allowing an employee who took FMLA leave for a serious health condition to return to work from FMLA leave, an employer may require the employee to submit to a “fitness-for-duty” certification as a condition of returning to work. However, an employer may seek a fitness-for-day certification only with respect to the particular health condition that caused the employee’s need for FMLA leave. In Brumbalough v. Camelot Care Centers, Inc., 427 F.3d 996 (6th Cir. 2005), the Sixth Circuit determined that “the fitness-for-day certification need only state that the employee can return to work.” “[O]nce an employee submits a statement from her health care provider which indicates that she may return to work, the Brumbalough court also determined, “the employer’s duty to reinstate her has been triggered under the FMLA.”

Prerequisite To Employee’s Reinstatement

Because the protections of the FMLA are not indefinite in duration, an employee’s right to reinstatement is conditioned on the employee’s ability to perform the essential functions of the employee’s job at the conclusion of the twelve-week period of FMLA leave. As the U.S. Sixth Circuit Court of Appeals in Edgar v. JAC Prods., Inc., 443 F.3d 501 (6th Cir. 2006) explained, “once the twelve-week period ends [ ], employees who remain unable to perform an essential function of the position because of a physical or mental condition . . . have no right to restoration to another position under the FMLA.” Thus, as observed by the U.S. Eleventh Circuit Court of Appeals in Rajmi v. Hospital Housekeeping Systems, LLC, Case No. 18-cv-00734 (11th Cir. April 6, 2021), “if, after twelve weeks, the employee cannot perform an essential function of her job, her employer may choose to end her employment.” In Edgar, the Sixth Circuit also explained that because employees do not have a right to restoration when they are unable to perform the essential functions of their position because of a physical or mental condition at the end of the twelve-week period of FMLA leave, “an employer does not violate the FMLA when it fires an employee who is indisputably unable to return to work at the conclusion of the 12-week period of statutory leave” under the FMLA.

The decision by the U.S. District Court for the Eastern District of Michigan in Ryder v. Beaumont Health, Inc., 2019 WL 5068474 (E.D. Mich. Oct. 9, 2019) demonstrates that employees must be able to perform the essential functions of their position upon expiration of the twelve-week period of FMLA leave in order to have a right to reinstatement under the FMLA. In that case, the employee received approval to take twelve weeks of FMLA leave until December 9, 2016 due to a serious health condition. Three days before expiration of the employee’s FMLA leave, the employer sent the employee a letter informing him that the company needed to fill his position upon expiration of the twelve weeks of FMLA leave. The employee’s doctor did not clear him to return to work without restrictions until January 26, 2017. At that point in time, the employer placed the employee on a sixty-day layoff status, allowed him to interview for other internal positions while on layoff status, and ultimately terminated his employment on June 14, 2017. The employee never returned to work after taking FMLA leave.

In bringing an FMLA retaliation claim, the employee argued that the employer violated the FMLA by failing to restore him to his previous position at the conclusion of his twelve-week FMLA leave and terminating his employment. The trial court dismissed the employee’s FMLA retaliation claim. In doing so, the trial court pointed out that the employee “could not return to work until approximately five weeks after he exhausted his FMLA leave.” Once the employee’s twelve-week period of FMLA leave ended and the employee was unable to perform an essential function of his position, the trial court explained, the employee had no right to job restoration under the FMLA. Consequently, the trial court concluded that “once [the employee] failed to return to work after using his full 12 weeks of leave,” the employer “was within its authority to terminate his position” and terminate his employment.

No FMLA Right To Accommodation

When an employee remains unable to perform an essential function of his or her position because of a physical or mental condition at the end of the twelve-week period of leave allowed by the FMLA, an issue that inherently arises is whether an employer is obligated by the FMLA to provide the employee with a reasonable accommodation that would enable the employee to perform the essential function and, thus, preserve the employee’s employment upon expiration of FMLA leave. For example, when an employee still cannot perform an essential function of his or her position because of a physical or mental condition at the conclusion of the twelve-week period of leave under the FMLA, does the FMLA require an employer to provide the employee with light duty work or even extended leave as an accommodation. The issue of whether an employer must provide accommodations to employees who are unable to return to work because of a physical or mental condition at the end of the twelve-week period of FMLA leave is derived from the obligation of employers to reasonably accommodate disabled employees under the Americans with Disabilities Act (ADA).

Under the ADA, when employees are unable to perform the essential functions of their position because of a disability, employers are required to provide them with a reasonable accommodation that will enable them to perform those functions. By requiring employers to provide disabled employees with an accommodation that will enable them to perform the essential functions of their job, the ADA allows disabled employees to continue working for their employer. When an employer fails or refuses to reasonably accommodate a disabled employee, the employer has unlawfully discriminated against the employee in violation of the ADA.

Courts have rejected attempts to read a reasonable accommodation requirement into the FMLA. As observed by the U.S. Eleventh Circuit Court of Appeals in Gillaird v. Ga. Dep’t of Corr., 2012 WL 6115913 (11th Cir. Dec. 7, 2012), “[t]he leave provisions of the FMLA are wholly distinct from the reasonable accommodation obligations of employers covered under the ADA.” The FMLA, unlike the ADA, the U.S. Eighth Circuit Court of Appeals explained in Battle v. United Parcel Service, Inc., 438 F.3d 856 (8th Cir. 2006) “omits any requirement that employers seek to reasonably accommodate employees who cannot perform the essential functions of their respective positions.” Thus, as determined by the U.S. Third Circuit Court of Appeals in Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266 (3d Cir. 2012), “[t]he FMLA does not require an employer to provide a reasonable accommodation to an employee to facilitate his return to the same or equivalent position at the conclusion of [FMLA] medical leave.”

FMLA Retaliation Myth

In the FMLA retaliation context, many employees mistakenly believe that unless an employer tells them the challenged employment decision was taken because they exercised their FMLA rights, they do not have legal grounds for bringing an FMLA retaliation claim. Under well-established law, however, employees are not required to have evidence showing that an employer admitted to violating their FMLA rights in making the challenged employment decision in order to have legal grounds for bringing an FMLA retaliation claim. As observed by the U.S. Second Circuit Court of Appeals in Rosen v. Thornburgh, 928 F.2d 528 (2d Cir. 1991), “an employer who [retaliates] is unlikely to leave a ‘smoking gun,’ such as a notation in an employee’s file, attesting to [retaliatory] intent.”

Indeed, “smoking gun” evidence attesting to retaliatory intent almost never exists in today’s sophisticated employment world. Thus, as pointed out by the U.S. First Circuit Court of Appeals in Hodgens v. General Dynamics Corp., 144 F.3d 151 (1st Cir. 1998), “ ‘smoking gun’ evidence is [ ] not required to prove [retaliation].” Because an employer almost never will admit to a retaliatory motive or leave a paper trail attesting to a retaliatory motive when subjecting an employee to an adverse employment action because the employee exercised FMLA rights, FMLA retaliation claims almost always must be proven by circumstantial evidence.

The decision by the U.S. Sixth Circuit Court of Appeals in Demyanovich v. Cadon Plating & Coatings, LLC, 747 F.3d 419 (6th Cir. 2014) is illustrative of the rare circumstances where an employee has “smoking gun” evidence of a retaliation. In that case, the employee had been diagnosed with congestive heart failure and the employee’s doctor advised the employee to quit working. On the day the employee’s doctor told him to quit working, the employee asked his supervisor about taking FMLA leave. The supervisor denied the employee’s request for FMLA leave and told the employee that he was a “liability.” Later that same evening, the supervisor fired the employee. Pointing to the evidence that the employee was fired on the same day that his supervisor called him a “liability” after denying the employee’s request for FMLA leave, the Sixth Circuit found that the employee had “successfully provided direct evidence of retaliation” which would enable a jury to “conclude that [the employee] was terminated in retaliation for requesting FMLA leave.”

Evidence Reflecting FMLA Retaliation

A broad spectrum of circumstantial evidence may be used to establish that an employee was retaliated against for exercising an FMLA right. No particular type of circumstantial evidence is required to prove FMLA retaliation and all of the circumstantial evidence is considered cumulatively in determining whether an employee was retaliated against for exercising an FMLA right. Depending on the facts and circumstances of a particular case, the types of circumstantial evidence that can be used to prove that the challenged employment decision was taken because an employee exercised an FMLA right and the employee is a victim of FMLA retaliation include:

  • The employee is terminated while on FMLA leave.
  • The employer failed to reinstate the employee’s employment at the end of FMLA leave despite the employee’s ability to perform the essential functions of his or her position.
  • The employer implies or declares that the employee’s use of FMLA leave was a negative factor in the employment decision.
  • Suspicious timing in the form of a short period of time between the employee’s exercise of an FMLA right and the adverse employment action. For example, the employee is fired one week after requesting FMLA leave or one month after returning from FMLA leave.
  • The employer subjects the employee to a pattern of antagonism or adverse employment actions after the employee exercised an FMLA right. For example, after the employee requests or takes FMLA leave, the employer subjects the employee to disciplinary action, demotion, denial of promotion, reduction in pay, greater workload, or undeserved negative performance evaluations.
  • Remarks by supervisors or managers reflecting anger, annoyance, or displeasure about the employee requesting FMLA leave or taking FMLA leave.
  • Remarks by supervisors or managers reflecting anger, annoyance, or displeasure about the employee’s serious health condition, including the alleged impact of the employee’s serious health condition on his or her work performance, job commitment, or work attendance.
  • Evidence that the employer enforced a work rule or policy against the employee who exercised an FMLA right, but the employer did not enforce the work rule or policy against employees who did not exercise FMLA rights.
  • Evidence that the employment decision is contrary to company policy.
  • Evidence that it was not the employer’s policy or practice to respond to a problem used as the justification for the employment decision in the way it responded towards the employee who exercised an FMLA right.
  • Evidence that the employer gave inconsistent reasons for the employment decision.
  • Evidence that the reason for the employment decision is not factually true.
  • Evidence that the employer retaliated against other employees who exercised FMLA rights.

Suspicious Timing Reflects FMLA Retaliation

To establish a FMLA retaliation claim, an employee must demonstrate that a causal connection exists between the employee’s exercise of an FMLA right and the adverse employment action. In determining whether a causal connection exists between the two events, courts focus on the temporal proximity—the nearness in time—between an employee’s exercise of an FMLA right and the adverse employment action.

When only a short period of time separates an employee’s exercise of an FMLA right and the adverse employment action, courts have consistently determined that such close temporal proximity is unusually suggestive of retaliation. Thus, when an employee’s exercise of an FMLA right is closely related in time to the adverse employment action, the close temporal proximity between the two events is evidence that the adverse employment action was taken in retaliation for the employee’s exercise of an FMLA right. In applying the principle that temporal proximity is an indicator of an employer’s retaliatory motive, as observed by the U.S. District Court for the Middle District of Florida in Flynn v. Fidelity Nat. Management Services, LLC, Case No. 16-cv-87 (M.D. Fla. March 28, 2017), “the general rule is that a period of less than three months between the employee’s [exercise of an FMLA right] and the employer’s adverse [employment] action is sufficient on its own to establish” a causal connection between the two events.

FMLA Leave As Negative Factor In Decisions

In protecting employees from retaliation for exercising their FMLA rights, as the U.S. District Court for the Western District of Virginia explained in Blankenship v. Buchanan General Hospital, 140 F.Supp.2d 668 (W.D. Va. 2001), the FMLA forbids employers from using “the taking of FMLA leave as a negative factor in employment decisions,” such as demotion, promotion, compensation, discipline, and termination. In order to establish a FMLA retaliation claim, as determined by the U.S. Third Circuit Court of Appeals in Egan v. Delaware River Port Authority, 851 F.3d 263 (3d Cir. 2017), “an employee does not have to prove that invoking FMLA rights was the sole or most important factor upon which the employer acted.” Instead, the Egan court concluded, an employee is only required to show that his or her use of FMLA leave was a “negative factor” in the employment decision. Thus, an employee can still prove a FMLA retaliation claim even if other reasons exist for the employment decision, so long as the employee proves that his or her use of FMLA leave was a “negative factor” in the employment decision.

An employee’s protection from an employer using FMLA leave as a negative factor in an employment decision is illustrated by the decision of the U.S. Sixth Circuit Court of Appeals in Hunter v. Valley View Local Schools, 579 F.3d 688 (6th Cir. 2009). In that case, the employee took intermittent periods of leave under the FMLA from 2003 to 2005 while she underwent three rounds of surgery. Soon after she returned to work in August 2005, the employer placed her on involuntary leave, for a period up to one year, because of excessive absenteeism during the previous four years. The employer’s charge of excessive absenteeism was based on review of the employee’s attendance records, which included her FMLA leaves. In fact, “most of” the absences in the employee’s record were due to FMLA leave. The employee claimed that she had been retaliated against for exercising her FMLA rights because the employer impermissibly considered her use of FMLA leave in placing her on involuntary leave. After the trial court dismissed her FMLA retaliation claim, the employee filed an appeal with the Sixth Circuit.

The Sixth Circuit reversed the trail court’s dismissal and reinstated the employee’s FMLA retaliation claim. In rejecting the employer’s argument that it was entitled to consider the employee’s “complete attendance” record in deciding to place the employee on involuntary leave, the court of appeals pointed out “that is precisely what Congress forbade employers to do when it enacted the FMLA.” Under the FMLA, the appellate court explained, employers “cannot use the taking of FMLA leave as a negative factor in employment decisions.” As the employer admitted that the decision to place the employee on involuntary leave was based, in part, on her FMLA leaves, the employee had presented direct evidence of an “impermissible [retaliatory] motive because the employer was forbidden from using the employee’s FMLA as a basis for placing her on involuntary leave.”

Employee Fired After FMLA Request

In some cases, employers are terminated after they request FMLA leave but before they actually take FMLA leave. Under such circumstances, employers invariably argue that employees cannot prevail on a FMLA retaliation claim because they did not actually take FMLA leave. In other words, employers maintain that employees must actually commence leave under the FMLA in order to be protected from retaliation by the FMLA. This employer argument was emphatically condemned by the U.S. Third Circuit Court of Appeals in Erdman v. Nationwide Ins. Co., 582 F.3d 500 (3d Cir. 2009).

In that case, the employee submitted paperwork on April 14, 2003 requesting FMLA leave from July 7 to August 29. On May 9, 2003, the employer fired her. In seeking dismissal of the employee’s FMLA retaliation claim, the employer argued that the employee was not protected from retaliation by the FMLA because she did not actually take FMLA leave. In rejecting this argument, the Third Circuit determined that employees are protected from retaliation by the FMLA after requesting FMLA leave and protection from retaliation under the FMLA is not limited to circumstances where FMLA leave has commenced. The Erdman court reasoned that “it would be patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability by firing the employee before the leave begins.” In fact, the Erdman court explained, to accept the employer’s argument that employees are not protected from retaliation by the FMLA after requesting FMLA leave would “perversely” reward employers who “preemptively” fire employees after they request FMLA leave because the employees are unprotected from retaliation until they actually take FMLA leave.

Employee Fired After Notice Of Intent To Take Leave

In some cases, employees are terminated after giving notice of their intention to take FMLA leave in the future but before they actually take FMLA leave. Under such circumstances, employers contend that an employee’s exercise of FMLA rights does not include declaring an intention to take FMLA leave in the future and, thus, an employee who merely gives notice of an intention to take FMLA leave in the future is not protected from retaliation by the FMLA. This employer argument was squarely rejected by the U.S. Tenth Circuit Court of Appeals in Wehrley v. Am. Family Mut. Ins. Co., 513 Fed.Appx. 733 (10th Cir. 2013).

In that case, the employee suffered a work-related knee injury in June 2007. On July 21, 2008, the employee discussed with his supervisor his need for knee surgery and informed the supervisor that he had surgery scheduled for July 30, 2008. The supervisor followed up the conversation with an email referring the employee to the company’s FMLA coordinator “to discuss FMLA possibilities as soon as you can.” Because the employee’s insurance company initially did not approve the surgery, surgery was not performed on July 30, 2008. On August 6, 2008, the supervisor asked the employee whether he had filed for FMLA leave. The employee said that he planned to apply for FMLA leave once the surgery was scheduled, but was waiting to hear back from his insurance company regarding approval of the surgery. On August 28, 2008, the supervisor asked the employee if he had received a response from his insurance company or if he had applied for FMLA leave. The employee responded no to both questions. The supervisor fired the employee later that same day.

Adopting the employer’s argument that the employee was not protected from retaliation by the FMLA because he never actually took FMLA leave, the trial court dismissed the employee’s FMLA retaliation claim. On appeal, the Tenth Circuit reversed the trial court’s decision and reinstated the employee’s FMLA retaliation claim. The appellate court determined that employees are protected from retaliation by the FMLA and exercises FMLA rights when they give “an employer notice of intent to take FMLA leave.” To hold that employees are unprotected from retaliation by the FMLA after giving an employer notice of an intention to take FMLA leave in the future, the Tenth Circuit reasoned, would allow employers to deny employees their FMLA rights, including the right to leave and the right to restoration, by “preemptively firing” them.

Employee Fired While On FMLA Leave

Because the FMLA guarantees employees the right to be restored to their former position, or an equivalent position, at the end of their FMLA leave, employees who are fired while on FMLA leave generally have a meritorious FMLA retaliation claim. In preventing an employee from exercising the right to restoration at the conclusion of FMLA leave, the termination of an employee who is on FMLA leave is compelling evidence that the employee was fired in retaliation for exercising FMLA rights.

However, as the U.S. Sixth Circuit Court of Appeals observed in Arban v. West Pub. Corp., 345 F.3d 390 (6th Cir. 2003), “an employee lawfully may be dismissed, preventing him from exercising his statutory rights to FMLA leave or reinstatement, but only if the dismissal would have occurred regardless of the employee’s request for or taking FMLA leave.” Thus, as explained by the U.S. Tenth Circuit Court of Appeals in Twigg v. Beechcraft Corp., 659 F.3d 987 (10th Cir. 2011), “[a]n employer is not necessarily liable under the FMLA anytime it fires an employee who has requested or is on FMLA leave.” Rather, the Twigg court pointed out, “because an employee who requests leave or is on leave has no greater rights than an employee who remains at work,” an employee who requests FMLA leave or who is on FMLA leave may lawfully be terminated “if the dismissal would have occurred regardless of the employee’s request for or taking of FMLA leave.” In other words, as the U.S. Eighth Circuit Court of Appeals noted in Thorneberry v. McGehee Desha Cty. Hosp., 403 F.3d 972 (8th Cir. 2005), the FMLA “simply does not force an employer to retain an employee on FMLA leave when the employer would not have retained the employee had the employee not been on FMLA leave.”

Employment Law Blog

As part of our commitment in assisting and protecting employees against unlawful employment practices, our Ocala, Florida retaliation attorneys offer more information about the FMLA in our employment law blog.

Marion County, FL Retaliation Attorneys

Based in Ocala, Florida and representing employees throughout Central Florida, our Ocala, Florida retaliation lawyers have dedicated their practice to representing employees who have been retaliated against for exercising their employee rights. If you have been retaliated against for requesting time off from work because of medical problems or have questions about your protection from retaliation under the FMLA, please contact our office for a free consultation with our Marion County, Florida retaliation attorneys. You will received personalized and individual attention from our employment attorneys. Our employees’ rights law firm takes retaliation cases on a contingency fee basis and if we fail to recover on your behalf, we do not get paid. Our Ocala, Florida retaliation lawyers are ready to take your case and fight for your employee rights.

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