N.J.: Judge Interfered with Employee’s FMLA Rights

By Diane Cadrain Dec 16, 2014

A New Jersey employee can make out a valid claim of interference with her Family and Medical Leave Act (FMLA) rights even if she gets the leave she requested, a New Jersey federal court ruled.

Lisa Fisher started working for the New Jersey Judiciary in 2001, and by 2011 had advanced to become a judge’s secretary, assigned to Judge Francine Schott. After Fisher had spent about two years in this assignment, her father underwent surgery for bladder cancer. Fisher asked for, and received, leave under the FMLA to care for him in his recuperation. She began her leave on Dec. 10, 2012, and returned to work on Jan. 3, 2013.

But when she came back to work, she said, Schott angrily confronted her, threatened to fire her, and accused her of abandoning her job and lying about using the leave to care for her father. Thereafter, Fisher claimed, Schott began a campaign of harassment directed at her and designed to intimidate, harass and threaten her for taking the leave.

Distressed by the workplace environment, Fisher asked for and received a second leave of absence, this one for temporary disability caused by profound emotional distress. That leave began in January 2013 and ended in April of that year. When Fisher returned to work, she learned that her secretarial position had been taken away from her and that she had been demoted to judiciary clerk, the job she held when she had started with the judiciary department in 2001.

Fisher sued Schott and the judiciary department for violations of state and federal family leave laws, claiming that Schott’s behavior interfered with her exercise of her right to take family leave.

Schott asked the court to dismiss the claim, arguing that Fisher was never denied any leave that she requested and was granted leave for the exact dates and duration that she sought. Fisher countered that the failure to return her to the same job after her leave in and of itself constituted interference with her right under the law, since one of the entitlements under the FMLA is to return to the same or an equivalent position. She also argued that it is interference to "discourage" an employee from using FMLA leave.

The court stated that to make a viable claim of interference with FMLA rights, an employee need only show that [s]he was entitled to benefits and denied them. The right to return to the same or a similar position after leave is undoubtedly a right under the FMLA, the court said, and Schott interfered with that right when she demoted Fisher from judicial secretary to judicial clerk.

The court added that Schott’s behavior toward Fisher also constituted interference of a different kind by discouraging her from using the leave. Fisher’s statement that she was threatened with firing, harassed, and intimidated was sufficient to sustain a claim for interference based on "discouragement" of allowing exercise of FMLA rights, the court stated.

The court denied the motions to dismiss.

Fisher v. Schott., D. N.J., Civil Action No. 13-5549 (ES) (Nov. 19, 2014).

Diane Cadrain is an attorney who has been writing about employment law issues for more than 20 years.

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