How FMLA Retaliation Risk Starts With One Leave Call

An employee asked for FMLA leave. Not long after, he was fired. He sued, claiming the termination of his employment amounted to retaliation for using protected leave – a claim tied to how his request was handled.

In Pack v. CSX Transportation, Inc., a federal judge refused to dismiss the employee’s FMLA retaliation claim, leaving the employer facing a costly trial – or an expensive settlement.

Fired for Misusing Intermittent Leave – or FMLA Retaliation?

Toby Pack worked for CSX Transportation. In April 2017, he applied for intermittent FMLA leave related to chronic kidney stones. His doctor estimated the condition could require intermittent leave up to three times per month. CSX approved the request.

On August 23, 2017, Pack called CSX’s Crew Management Center to request time off. After being transferred several times, he initially requested a personal day because his children were moving to a new school. He was told a personal day wasn’t available.

Pack then referenced his approved intermittent FMLA leave and asked that the day be marked as FMLA. The representative coded the absence accordingly.

Pack later explained that he needed the day off for health-related reasons tied to his kidney stone condition but had asked for a personal day first because it would’ve been paid, and he didn’t want to use his intermittent FMLA time if he didn’t have to.

After a hearing, CSX concluded that Pack had misused his FMLA leave and fired him. He sued, alleging FMLA retaliation and interference. 

Dispute Focuses on Phone Call

The dispute focused on how CSX interpreted Pack’s August 23 call and the absence that followed.

CSX viewed the call as a misuse of FMLA leave. The company focused on the sequence of the conversation, noting that Pack first asked for a personal day because his children were starting a new school. Only after learning that a personal day was unavailable did he reference the FMLA. That order of events led CSX to question whether the absence qualified for protected leave.

From Pack’s perspective, the call reflected overlapping reasons, not a shifting story. He acknowledged that his children’s school schedule came up during the conversation and admitted that pay considerations came into play.

At the same time, he said his kidney stone condition was flaring up and that he needed time off for medical reasons covered by his approved intermittent FMLA leave. He pointed out that he provided a doctor’s note supporting the medical need for the absence.

What HR Needs to Know About FMLA Retaliation Claims

At this early stage, the court wasn’t deciding whether retaliation occurred, only whether Pack’s claim was strong enough to proceed to trial.

To move the FMLA retaliation claim forward, Pack had to show a plausible link between his FMLA leave and the termination of his employment. The court said he did.

Under the burden-shifting framework established by the U.S. Supreme Court’s ruling in McDonnell Douglas Corp. v. Green, CSX then had to point to a legitimate reason for firing Pack, and the court examined whether that explanation held up against the facts alleged.

CSX argued the phone call showed Pack misused FMLA leave. But the court wasn’t persuaded. It pointed to Pack’s testimony that he needed time off for both medical and family-related reasons, along with the doctor’s note supporting the medical need. Taken together, the judge said, a reasonable jury could question CSX’s stated reason for the termination and find it amounted to FMLA retaliation.

The court dismissed the interference claim and allowed the case to proceed solely on the FMLA retaliation claim.

Key Takeaways for HR

How HR handles FMLA requests in real time can significantly reduce retaliation risk.

• Mixed reasons happen. Employees often mention personal and medical issues in the same conversation. Courts tend to look at the full exchange – not just the least protected detail.
• Front-line handling can shape the case. Supervisors and call-center staff who field leave calls need clear guidance on how to document dual-purpose requests so later investigations don’t overread or mischaracterize the exchange. 
• Pay concerns aren’t proof of FMLA misuse. In a tight economic climate, employees often ask about paid time off first to manage cash flow and financial stress, without any intent to game the system. 
• Intermittent leave creates gray areas. Doubt alone won’t justify discipline. Employers need something firmer than skepticism about intermittent leave requests.
• Medical notes still matter. A doctor’s note tied to the approved condition can undercut a misuse argument, even when the employee’s explanation comes out imperfectly during the initial call. When a doctor’s note leaves room for doubt, HR guidance on questionable FMLA certification can help.
• Timing magnifies risk. When termination closely follows protected leave, courts are more willing to let a jury decide motive.

HR Action Steps

• Audit how leave calls are documented before FMLA investigations begin
• Keep call records factual and separate from later investigation notes and hearing conclusions
• Revisit intermittent FMLA handling annually using real call examples

Pack v. CSX Transportation, Inc., No. 3:24-0688 (S.D.W. Va. 1/14/26).