FMLA Failure-to-Promote Claim Is Viable

A discriminatory interference claim under the Family and Medical Leave Act (FMLA) can be based on a failure to promote, according to a federal district court in Nevada, but an exercise-of-rights interference claim under the FMLA could not be based on a corrected error in FMLA designation that did not result in a prevention of entitled leave.

The city of Reno, Nev., employed the plaintiff as a police officer beginning in 2005. Subsequently, he took sick leave to care for his newborn child and wife, who had pregnancy-related medical issues. During his leave, the HR department contacted him and informed him that he would have to use his vacation leave if he was out to care for a new baby.

After some back and forth between HR and the plaintiff, the city subsequently designated his leave as FMLA leave. However, the city informed him that because he was not able to use his accrued sick leave, his leave would be counted against his vacation and other leave time. The plaintiff objected to this and again requested to use his accrued sick leave. The city responded by allowing him to use his sick leave but still designated the leave as FMLA leave, which would run concurrently with his sick leave.

Once the plaintiff returned to work, he interviewed for a lieutenant position. During his interview, he was directly questioned regarding his FMLA leave and criticized for how he handled the issue with HR. He did not receive the promotion, and the city admitted that his complaint regarding HR's handling of his FMLA leave was the reason he was rejected.

He subsequently sued the city, alleging two interference claims under the FMLA: interference based on his exercise of FMLA rights (using leave) and interference based on discrimination (denying him a promotion based on his complaint against HR). After the court denied summary judgment, a jury found for the plaintiff on both claims and awarded him a total of $1.4 million. Eventually, the city filed a renewed motion for judgment as a matter of law and was successful in overturning part of the jury's verdict.

[SHRM members-only toolkit: Managing Family and Medical Leave]

In evaluating the city's motion, the court first addressed the city's argument that there was no evidence that it interfered with the plaintiff's rights in a discriminatory way by denying him a promotion. The court disagreed and explained that there was ample evidence that the city's admitted reason for failing to promote the plaintiff was his complaint about not being able to use sick leave. The court found that the plaintiff's complaint regarding the use of sick leave was a protected activity under the FMLA and that the denial of the promotion was a resulting adverse employment action. The court did not disturb the jury's verdict on this claim, including its finding that front pay was warranted in light of the failure to promote.

But the court found that there was not enough evidence to support a finding that the city interfered with the plaintiff's FMLA rights regarding the use of sick leave. The plaintiff alleged that his rights were interfered with when the city initially tried to prevent him from using sick leave. The court explained that there was ample evidence for the jury to determine that the city's initial refusal to permit the plaintiff from taking sick leave, which was based on an error regarding his FMLA designation (a false presumption that he wanted to bond with his baby instead of care for his wife's serious health condition), was unlawful interference under the FMLA.

Nevertheless, the court reasoned, because the city's error regarding the plaintiff's available leave was corrected and the plaintiff was never prohibited from using the leave entitled to him under the FMLA, there could be no interference claim regarding his exercise of rights under the FMLA.

Browett v. City of Reno, D. Nev., No. 3:16-cv-00181 (July 24, 2018).

Professional Pointer: An employer should not make promotion decisions based on an employee's use of sick or FMLA leave. Such a decision opens the employer up to liability under the FMLA and, potentially, large front-pay awards.

Claire F. Martin is an attorney with Lehr Middlebrooks Vreeland & Thompson, the Worklaw® Network member firm in Birmingham, Ala.