Interviewing Harassed Employee During Leave May Violate the FMLA


By Jeffrey Rhodes
Interviewing Harassed Employee During Leave May Violate the FMLA

A Napa County corrections officer who alleged that he had been harassed and who then was pressured to describe the harassment during his ensuing medical leave could bring a Family and Medical Leave Act (FMLA) interference claim, a federal district court in California has ruled.

The plaintiff was hired as a Napa County correctional officer in March 2007. He earned several letters of commendation and was promoted to the position of field training officer. The plaintiff claimed that, for a 12-month period, his co-workers harassed him, referring to him as "bi-curious" and "gay," made crude and pejorative comments to him, and hung pictures in the workplace to suggest that he was gay.

The plaintiff also claimed that co-workers harassed him because he refused to fail or disqualify a black employee that he was supervising and training. They told him that they did not want to work with a black correctional officer and that the trainee did not fit in.

The plaintiff said he reported this conduct to his supervisor, but nothing was done. The plaintiff told his supervisors that he had been diagnosed with post-traumatic stress disorder, stress and anxiety disorder, as a direct result of the harassment at work and that the stress caused him to have an attack of Bell's palsy.

In October 2017, after the plaintiff had lodged his complaints, a sergeant met with the staff. The plaintiff claimed that supervisors and staff refused to speak to him and someone spit into his coffee cup.

On Nov. 21, the plaintiff realized that the batteries in his flashlight and radio had been removed and hidden; as a result, his supervisor accused him of being out of uniform. The plaintiff also claimed to find gay pride pictures on his work locker.

The plaintiff again complained to a supervisor but was told that he was stressed out from his father dying and not from the harassment. The plaintiff alleged that he continued to experience harassment based on the perception that he was gay or bisexual and was chastised by a supervisor. As a result, the plaintiff broke down, sought urgent medical care and was removed from the workplace by his physician for 90 days on protected medical leave.

While the plaintiff was on medical leave, Napa County began an investigation into his workplace complaints. Napa County demanded that he attend an interview and cooperate in the investigation, even though he was seeking daily treatment and care. When the plaintiff explained that he was on FMLA leave, his employer then accused him of failing to cooperate in the investigation. The plaintiff subsequently resigned.

The plaintiff filed a complaint in federal court. The plaintiff named Napa County and his supervisors, as well as unnamed co-workers, as defendants. He asserted claims for violation of his due process and equal protection rights under 42 U.S.C. Section 1983; race discrimination based on association; retaliation; harassment and gender discrimination under California law; FMLA interference against Napa County; and intentional infliction of emotional distress. Napa County moved to dismiss the complaint.

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

The court found that the plaintiff's constitutional employment claims could not proceed as alleged and dismissed them (but gave the plaintiff an opportunity to amend the claims). The court denied the county's motion to dismiss the plaintiff's associational race discrimination claim and his FMLA interference claim.

The plaintiff alleged that Napa County interfered with his FMLA leave by launching an investigation into his complaints nearly a year after he first made them, only after he took protected leave. He alleged that Napa County mishandled the investigation by demanding that he attend an interview and cooperate with its investigation, then accusing him of failing to cooperate when he responded that he was on leave. These allegations sufficed to state a claim for FMLA interference and supported a finding that the county arguably used the investigation to discourage the plaintiff from taking FMLA leave.

Michelucci v. County of Napa, N.D. Cal., No. 18-cv-05144 (May 6, 2019).

Professional Pointer: When an employee takes FMLA leave due to alleged harassment, employers must both investigate the harassment and allow the employee to use protected leave. At most, employers should only request—and not require—that an employee participate in an investigation during leave and limit the extent and duration of any such participation.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

[Visit SHRM's resource page on the Family and Medical Leave Act.]


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