FMLA Retaliation Claim Dismissed


A former employee's retaliation claim under the Family and Medical Leave Act (FMLA) was dismissed because a manager was aware that the employee was taking FMLA leave more than six months before the worker was fired. The court determined that there was adequate time between the FMLA leave being taken and the worker's termination for the discharge not to be considered retaliatory.


MidMichigan Medical Center hired the plaintiff as a first assistant surgical technician in 2007. In August 2015 during a performance review, her supervisors said that her score had been lowered due to an anonymous report alleging that she failed to follow medical center protocol. Upon surmising that one of the room nurses was the source of the anonymous complaint, the plaintiff approached her and asked whether she filed the report. The room nurse denied involvement with the complaint, but what followed next was disputed. The room nurse alleged that the plaintiff "haggled and attacked" her regarding the report. The nurse allegedly became afraid to submit future reports because of possible retaliation. The plaintiff disputed this characterization of events.


Under MidMichigan's conduct policy, an employee can be issued from one to four "action steps" depending on the severity of a violation, with the fourth action step resulting in termination. The plaintiff received three action steps for the incident with the room nurse, for retaliating against those who make good-faith internal complaints.


In November 2015, the plaintiff received her final action step. MidMichigan policy stated that an action step is warranted when an employee receives eight attendance points over a 12-month period. Prior to Nov. 1, 2015, the plaintiff had received 4.5 points. From Nov. 3-6, 2015, the plaintiff participated in a medical mission overseas and believed that she had enough paid time off to cover the absences. However, while the plaintiff was away, her supervisors discovered that she did not have enough paid time off available to cover her time away from work, thus warranting an action step. Since this was the plaintiff's fourth action step, MidMichigan fired her.


The plaintiff contended that her firing was motivated by her FMLA leave request in April 2015 to care for her mother. When the plaintiff's supervisor was informed of her FMLA request, the court said that her supervisor responded "FMLA for what?" The plaintiff took intermittent FMLA leave at various points throughout her time with MidMichigan. Nevertheless, she maintained that FMLA retaliation could be inferred from the closeness between her use of FMLA leave, approved from April 17, 2015, through Oct. 17, 2015, and her termination on Nov. 10, 2015.


The district court noted that the relevant time frame to consider whether there was a causal connection between a plaintiff's FMLA leave and an adverse employment action is the "time after an employer learns of a protected activity, not the time after the plaintiff's FMLA leave expires."


E-mails indicated that the plaintiff's supervisor was aware of the protected, FMLA activity in April 2015, over six months prior to the plaintiff's termination. The district court cautioned that the "more time that elapses between the protected activity and the adverse employment action, the more the plaintiff must supplement his claim with other evidence of retaliatory conduct to establish causality." The only other evidence of retaliatory conduct that the plaintiff provided, observed the court, was her supervisor's reaction of "FMLA for what?" By itself, that comment was not enough to demonstrate causation.


The record also indicated that the plaintiff had been taking FMLA leave for years prior to the supervisor's e-mail with no repercussions. Moreover, the district court pointed to the plaintiff's own testimony that "the real reason I think that I got fired is because again I brought to them a patient safety concern which I felt very strong about, my management wouldn't do anything, I went over their head and they didn't like it." Given the lack of temporal proximity between when her supervisor learned of the FMLA leave and when the plaintiff was terminated, and the lack of other evidence of retaliatory conduct, the district court dismissed her claim.


Dzurka v. MidMichigan Medical Center-Midland, E.D. Mich., No. 16-cv-11718 (Oct. 30, 2017).


Professional Pointer: The internal FMLA process requires privacy as well as professional decorum.  Errant comments can create "other evidence of retaliatory conduct" and, even if innocuous, can give rise to time-consuming and expensive litigation.



By Roger S. Achille

Roger S. Achille is an attorney and professor at Johnson & Wales University in Providence, R.I.