Timing of Demotion Decision Sinks FMLA Claim

A former county recreation commission employee could not proceed with his Family and Medical Leave Act (FMLA) claim against the commission because it had decided to demote him, and he had refused to accept the new job, before he applied for FMLA leave, a federal district court in South Carolina ruled.

The plaintiff worked for the Richland County, S.C., Recreation Commission as its division head of facility operations. Following his participation in a sexual-harassment investigation against the executive director of the commission, he was suspended with pay, allegedly because of complaints made against him by some of his employees. A week later, he was offered a lesser position as director of maintenance, which he declined.

After the plaintiff refused to accept the offered demotion, he requested and was granted FMLA leave. Following his return from leave, he was fired.

The plaintiff sued the commission, alleging a violation of the FMLA and retaliation under Title VII of the Civil Rights Act of 1964. The court ruled that the FMLA claim could not go forward but permitted the retaliation claim to proceed.

FMLA Claim

The court assumed that the plaintiff established an initial case of an FMLA violation and that the commission presented a legitimate, nondiscriminatory reason for its decision to terminate him. Therefore, under established FMLA law, it was up to the plaintiff to show that the reason the commission gave for its decision to discharge him was pretext for a retaliatory reason relating to his use of FMLA leave. The plaintiff could not do this, the court concluded.

It was undisputed, the court said, that the commission made the decision to move the plaintiff to the director of maintenance position prior to his taking the FMLA leave and that the plaintiff declined this position prior to taking the leave.

"It is axiomatic there can be no causal connection when the employer's decision was made prior to the employee's exercise of his protected rights," the court concluded. Further, the court noted that "Employers need not suspend previously planned transfers upon discovering that a lawsuit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality."

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

Retaliation Claim

The court came to a different conclusion as to the retaliation claim, however. Although the commission stated that there was no causal link between the plaintiff's participation in the sexual-harassment investigation of the director and the commission's decision to remove him from the division head position, the court found that this was still an open question and ruled that the plaintiff could therefore proceed to trial on this claim.

The commission, noting that the plaintiff met with the attorney investigating the matter involving the director approximately three months before it made the plaintiff's job reassignment, argued that such a large time gap between the protected activity and the alleged discrimination was insufficient to establish the plaintiff's retaliation claim.

However, the court said, the attorney did not submit her findings in a report to the commission board until three months after speaking with the plaintiff. The court further noted that one day after submission of the report, the plaintiff was suspended with pay, pending an investigation into complaints made against him by some of his employees.

About a week later, the commission's head of human resources told the plaintiff that the investigation was complete and that it was in the best interest of the plaintiff and the commission for him to be moved to the director of maintenance position.

Therefore, the court said, the evidence established that just days, not months, had passed after the attorney made her report concerning the director's alleged sexual harassment when the commission took an adverse employment action against the plaintiff. It is well-established, the court said, that a causal connection may exist where the employer takes adverse employment action against an employee shortly after learning of protected activity.

Lewis v. Richland County Recreation Commission, D. S.C., No. 3:16-2884-MGL-TER (Sept. 5, 2018).

Professional Pointer: As this case shows, timing is everything. The FMLA claim could not proceed because the commission made the demotion decision before the plaintiff requested leave. However, the retaliation claim could go forward because the demotion decision occurred shortly after the commission became aware that the plaintiff had participated in the investigation of harassment claims against the director.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.