Keeping FMLA Usage Confidential Pays Off


By Jody M. Florence July 10, 2018

​An employee's retaliation claim under the Family and Medical Leave Act (FMLA) failed because he was unable to prove that the managers who decided to temporarily transfer him knew about his FMLA leave, according to the 6th U.S. Circuit Court of Appeals.

A manager of customer services at a U.S. Postal Service office in Dixie Branch in Lakeside Park, Ky., was approved for and took FMLA leave during an investigation into a grievance filed by 29 employees against him. His leave request was processed by the Postal Service's FMLA office in Greensboro, N.C.

While the grievance investigation was being conducted, three Postal Service managers decided to temporarily reassign the employee to the Cincinnati plant. Although he was assigned to a lower-level position, he continued to be paid as a level-20 employee. He eventually accepted a voluntary downgrade to a level-17 position at the Cincinnati facility and was issued a warning letter regarding his workplace conduct because of the grievance investigation.

He later resigned from the Postal Service and filed a lawsuit claiming, in part, that his temporary reassignment to a lower-level position in Cincinnati was retaliation for using FMLA leave. The trial court disagreed with him, ruling in favor of the employer.

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

The circuit court similarly found in the employer's favor because the employee failed to prove that the three managers who decided to temporarily reassign him to Cincinnati knew of his FMLA use before making their decision. The court ruled that although the employer had institutional knowledge of his FMLA use, he needed to prove that the managers who decided to transfer him knew he was using FMLA leave.

The employee contended that he told one of the managers that he was on FMLA leave over the phone and in writing. The manager testified, however, that he did not know about the employee's FMLA status until after he had informed the worker about the temporary reassignment. Moreover, the employee's only documentary proof—an e-mail he sent to the manager that mentioned his "certified FMLA case"—was sent after the manager had called and e-mailed the employee to notify him of the temporary reassignment.

The trial court credited the manager's testimony over the employee's, and the circuit court deferred to this decision. Finally, although his original supervisors may have known of his FMLA leave, the employee failed to prove that they were involved in the decision to temporarily reassign him.

Slusher v. U.S. Postal Service, 6th Cir., No. 17-6066 (April 30, 2018).

Professional Pointer: Many employers' policies state that medical information and requests for leave or other accommodations will be kept confidential and shared within the company only on a need-to-know basis. This case demonstrates precisely why such policies can be so helpful. While not every employer can have a separate office dedicated to processing FMLA claims, the effort taken to keep this type of information as confidential as possible can still yield favorable results in litigation.

Jody M. Florence is an attorney with Kamer Zucker Abbott, the Worklaw® Network member firm in Las Vegas. 


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