What Went Wrong? Supervisor's Comments Fuel FMLA Suit Against Dollar General

Ft. Wayne, IN (WorkersCompensation.com)—A supervisor’s negative comments about a worker exercising her FMLA rights is one the easiest ways for a company to trigger or perpetuate an FMLA retaliation lawsuit.

While it was unclear at this stage of the case whether the supervisor Mathias v. Dolgencorp, LLC, No. 1:20-cv-108 (N.D. Indiana 10/28/22) actually planned to fire a general warehouse worker with an injured ankle if she took more leave, or whether she was even referring to the worker, it was a key piece of evidence that prevented Dollar General from stopping the lawsuit from proceeding past summary judgment.

Dollar General terminated the worker for violating its safety policies—she was accused of climbing on racks. The worker sued the company, claiming that it fired her in retaliation for her exercising her FMLA rights.

To establish retaliation, the worker had to show, in part, that the company fired her because she exercised her rights under the FMLA. Showing causation in a retaliation case is somewhat easier under the FMLA than under the ADA, the court explained. The worker did not have to show that retaliation was the “but for” cause of or only reason for her termination; she merely had to show that her protected activity was a “a substantial or motivating factor in the employer's decision.”

Here, the distinction was significant. And the court found that the worker succeeded in making her case by a slim margin.”

What went wrong in the case?

The worker pointed to the following evidence—evidence that allowed the case to go forward to a jury:

• According to the employee, her supervisor outright denied her request to wear a special boot for her ankle. This, the worker asserted, showed that the supervisor harbored an animus toward her, and toward her use of FMLA leave.
• When the worker requested additional leave, the supervisor allegedly showed animus toward the worker’s use of leave by disputing her entitlement to leave.
• The day before the worker was accused of climbing on racks, the supervisor purportedly commented that "she" requested FMLA "again" followed by the statement that "she" would be gone before it was approved. The statement was made within two weeks of the employee’s request for additional intermittent leave, which had not yet been approved at the time of the statement.
• The supervisor, according to the worker, inquired as to whether the worker had accumulated enough attendance points to be fired. This allegedly occurred after the supervisor delayed implementing an approved reduced schedule for the worker.
• The worker pointed to a discrepancy in how her FMLA leave time was reported and how it should have been reported. She asserted that her supervisor was padding the amount of leave she was taking so she would run out of leave time sooner.

It was unclear, the court noted, whether the supervisor was referring to the worker when she said “she” would be gone before she took more leave.  That was for a jury to sort out.

But the court pointed out that the alleged remarks were linked to the firing decision in terms of timing – they occurred the day before the worker’s alleged safety violation. A remark can raise an inference of discrimination, the court explained, when it was; 1) made by the decision maker; 2) around the time of the decision; and 3) in reference to the adverse employment action.

Put all that evidence together, the court found, and the worker raised an inference that her protected activity under the FMLA was a substantial or motivating factor in her termination.

Thus, the court denied the company request for summary judgment on the worker’s retaliation claim.

Compliance information from 53 U.S. jurisdictions, including Indiana, may be found on WorkCompResearch

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