Heads up: A recent federal appeals court ruling could make it easier for employees to win FMLA retaliation lawsuits.
In order for an employee to prove retaliation under the Family and Medical Leave Act, a worker must be the victim of a “material adverse employment action” — and in most cases up to this point, that meant things like a demotion, transfer, loss of benefits, a drop in pay or other substantial punitive treatment.
But in a recent decision by a federal appeals court in Connecticut, the judge lowered the bar considerably. Its idea of an “adverse action”: a letter of reprimand.
PTSD sparks need for leave
The case involved a worker named Christopher Millea, who suffered from severe post-traumatic stress disorder as a result of combat as a Marine during the First Gulf War.
Millea worked for Metro-North, a tri-state area commuter railroad. After a heated disagreement during a phone conversation with his supervisor, Earl Vaughn, he suffered a panic attack and immediately left work to see his doctor.
Because the encounter with Vaughn led to the attack, Millea did not inform Vaughn about his unforeseen FMLA leave. Instead, he spoke to another supervisor, Garrett Sullivan, and asked Sullivan to advise Vaughn.
The next morning, Millea called Sullivan to report that he was taking another FMLA day. Sullivan again relayed the information to Vaughn.
Because Millea did not notify Vaughn of his two absences directly (as required by company policy), Vaughn told Metro-North’s payroll department to log Millea’s absences as non-FMLA leave. That resulted in a formal discipline notice being placed in Millea’s employment file.
Millea then filed suit, alleging that the employer had interfered with his ability to take FMLA leave, and then retaliated against him by writing the letter of reprimand.
Appeals court slaps down employer
A lower court jury found in favor of Millea on his interference claim, but denied his retaliation claim.
Both sides appealed.
Metro-North argued that it was entitled to issue the notice of discipline because Millea failed to comply with the organization’s internal leave policy requiring an employee to notify his supervisor directly when FMLA leave is taken.
The judge disagreed. Employers can discipline an employee for violating an internal leave policy as long as that policy is consistent with the law, the court said. But in this case, Vaughn was notified in a timely way, “meaning his notice complied with the FMLA and all legally valid aspects of Metro-North’s internal leave policy,” the appeals court said.
On the retaliation issue, the court explained that “a materially adverse action is any action by the employer that is likely to dissuade a reasonable worker in the plaintiff’s position from exercising his legal rights.”
Placing a letter of reprimand in an employee’s file might well dissuade a worker from exercising his or her rights, the court concluded.
Significance for employers
What’s the lesson here? According to attorney R. Michelle Tatum, writing on the blog of law firm Ford & Harrison, “The (court’s) decision is significant because it is the first time this court has recognized the broader definition of ‘materially adverse employment action.’
“If other federal appeals courts continue to adopt this broader definition, more employers may find themselves involved in litigation over whether an action taken against an employee was ‘materially adverse.’
“The decision is also significant because it holds that an employer’s rigid policy of requiring employees to directly notify their supervisor of a need for FMLA leave, even if the leave is unforeseeable, is invalid as inconsistent with the FMLA.”
The case is Millea v. Metro-North R.R. Co. To read the judge’s full decision, go here.
