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7th Circuit: FMLA Retaliation Claims Hinge on Employee Perceptions

By Chris Arbery and Michelle O’Leary   5/16/2008

The 7th U.S. Circuit Court of Appealsreversed the dismissal of the claims of two employees alleging retaliation and failure to reinstate under the Family and Medical Leave Act (FMLA). The appeals court found that the perceptions of the plaintiffs, as well as the perceptions of other employees, were particularly important in assessing whether the claims should proceed to trial.

After beginning his employment with Motorola in 1994, James Breneisen advanced within the company to a process analyst position. In June 2000, he was informed that he was being considered for a salaried position. Prior to any determination, however, Breneisen went on FMLA leave on Jan. 15, 2001.

When he returned from leave, Breneisen was told that his position was eliminated and that his duties had been distributed among various employees. Breneisen worked in a production line position for eight days before taking another period of FMLA leave. He exhausted all of his remaining available leave time during this absence.

When he returned from this second leave, Breneisen was again informed that his process analyst position had been eliminated and that instead he would be working as a technician assistant. This new position afforded Breneisen the same pay and benefits as the process analyst position. However, Breneisen and a fellow employee perceived the move to be a demotion.

Breneisen ultimately advanced to a new position.

On Feb. 5, 2002, Breneisen again took a medical leave. His employment was terminated over one year later, on June 27, 2003. Breneisen brought claims under the FMLA for Motorola’s alleged failure to reinstate him to the same or equivalent position following FMLA leave and for retaliation.

The FMLA provides that an employee may take up to 12 weeks of unpaid leave, after which he must be restored to the previous position or to an equivalent position with equivalent pay, benefits, and other terms and conditions. In assessing Breneisen’s failure to reinstate claim, the 7th Circuit observed that “[t]he test for equivalence is strict” and that jobs not only must have equivalent pay and benefits, but also “must involve the same or substantially similar duties and responsibilities.”

Although the process analyst and technician assistant positions had the same pay and benefits, the court found that they were not equivalent because the former involved administrative duties while the latter involved production duties. The court relied in part on the fact that Breneisen and a co-worker viewed the new position as a demotion, and that a Motorola manager acknowledged that the new position had “less prestige and visibility.”

The court also observed that Breneisen was being considered for a salaried position and that “[a]ll indications were that he was performing vital, not dispensable, functions” before taking FMLA leave.

In light of this evidence, in addition to several e-mails whose authenticity was vigorously disputed by Motorola, the 7th Circuit concluded that Breneisen had brought forward sufficient evidence to survive summary judgment.

Similarly, the court found that the dismissal of FMLA claims brought by another employee, Anna Lineweaver, was improper. Lineweaver, a customer service assistant for Motorola, took FMLA leave and alleged that a manager informed her that her request for tuition reimbursement would be denied because of her taking such leave.

Lineweaver testified that, due to this remark, she did not submit a request for tuition reimbursement. Despite the facts that the manager who allegedly made the remark had no authority over tuition reimbursements and that the tuition reimbursement was never in fact denied, the 7th Circuit held that the employee’s beliefs were not unreasonable and that it did “not fault Lineweaver for failing to submit a tuition reimbursement request. She had reason to think that a futile act.”

Motorola argued that tuition reimbursement was purely discretionary and that any alleged denial could not serve as a basis for an adverse employment action and ultimately establish retaliation. In overturning the grant of summary judgment to Motorola, however, the 7th Circuit rejected this argument and held that, in light of established criteria for tuition reimbursements, “we have no reason to think that tuition reimbursement was not an entitlement, [and] we cannot conclude that the denial of reimbursement was not an adverse employment action or materially adverse action.”

Importantly, the reimbursement request was never actually denied. However, a principal reason for the holding was that Lineweaver perceived that submitting a request would have been futile. Thus, her claim, like Breneisen’s claim, survived summary judgment based at least in part on her perceptions of management actions. The court noted further that “the e-mails of uncertain authenticity” also would support Lineweaver’s claims.

Breneisen v. Motorola Inc ., 7th Cir., No. 05-2032 (Jan. 15, 2008).

Professional Pointer: Employers should be careful not only to follow the letter of the law, but also to consider how actions will be perceived. This case also highlights the importance of avoiding the creation of harmful evidence through unguarded e-mails.

Chris Arbery and Michelle O’Leary are attorneys on the Labor & Employment Team at Hunton & Williams LLP.

Editor’s Note: This article should not be construed as legal advice.

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