FMLA Retaliation Claim Advances

By Roger Achille July 10, 2018
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​An employee who was denied a new position he was evidently qualified for and then terminated shortly after returning from medical leave can proceed with his retaliation claim under the Family and Medical Leave Act (FMLA).

In 2014, Demandware transferred the plaintiff to its strategic programs and new technology team, where he was charged with prospecting and selling a new product, Store, to charter customers. The plaintiff received good performance reviews and was admitted to the President's Club, which the district court said was a "rewards club for people [who] overachieve their goals."

In 2016, the plaintiff developed colon problems and underwent surgery. As a result, he took FMLA leave until mid-May 2016. Around the same time that the plaintiff underwent surgery, Demandware began eliminating the strategic programs. Demandware planned to assign responsibility for selling Store to the company's nationwide sales team and create a subject matter expert position to assist the team. The plaintiff produced evidence that Demandware initially planned to place him in the subject matter expert role. For instance, the plaintiff's supervisor noted that he would be a good fit for the specialist role, and a corporate vice president told the plaintiff that he would be the subject matter expert.

On May 16, 2016, the plaintiff informed Demandware that he would return to work but that he would have some restrictions and would require a second surgery in July. The plaintiff also revealed that he would be unable to travel until after he returned from the second surgery.

On May 20, 2016, the corporate vice president sent an e-mail to another manager expressing that he didn't see any positions that would be suitable for the plaintiff on his return. That manager, in turn, prepared talking points for a future conversation with the plaintiff that explained he would not be considered for the subject matter expert position partly because he would not be able to travel. The plaintiff was terminated on Sept. 16, 2016.

The plaintiff alleged that the defendant retaliated against him as a result of his decision to take FMLA leave. FMLA retaliation claims impose liability on employers that act against employees specifically because those employees invoked their FMLA rights. Demandware did not dispute that the plaintiff took FMLA leave after his initial and follow-up surgeries, that the company knew he planned to take and took that leave, and that he suffered an adverse employment action after taking leave. Rather, Demandware contended that the plaintiff did not demonstrate a causal connection between his use of FMLA leave and his termination.

The court, however, found sufficient evidence to support a causal connection between the FMLA use and the adverse employment action. The court noted that Demandware intended to place the plaintiff in the subject matter expert position until he informed them that he would need additional leave to undergo a second surgery. Demandware then "abruptly changed course" and determined that there were no suitable positions for the plaintiff, the court stated. The temporal proximity between the decision not to place the plaintiff in the expert role and Demandware being informed of the plaintiff's need for FMLA leave, the court remarked, is "alone sufficient evidence to establish causation for a prima-facie case of retaliation"—an initial showing of retaliation that the employer has an opportunity to disprove.

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

Demandware further contended that the plaintiff was fired because his prior position was eliminated and there were no other suitable positions available for him upon his return from medical leave. The court remarked that it was not clear that the plaintiff's position was eliminated, characterizing the subject matter expert position as "merely a continuation" of what the plaintiff was already doing, which was selling the Store product. But even if the expert position was totally new, the court found that there was "sufficient record evidence" for a jury to conclude that Demandware's claim that the subject matter expert position was outside the plaintiff's skill set was pretextual. The court declared it "difficult to believe" that, having allowed the plaintiff to present Store to customers to persuade them to be early adopters and having recognized him for his success, Demandware was suddenly uncomfortable allowing him to train and support sales representatives unfamiliar with the Store product.

Manion v. Demandware LLC, N.D. Ohio, No. 1:17-CV-1886 (May 29, 2018).

Professional Pointer: When employers are required to take adverse personnel action against an employee, particularly one on protected leave, evidence should be gathered to demonstrate the legitimate business reason.

Roger Achille is an attorney and a professor at Johnson & Wales University in Providence, R.I.

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