Staff Shortages, not Reprisal, Explain Failure to Keep Call Center Rep's Job Open

Danville, PA (WorkersCompensation.com)–Companies that can’t keep an employee’s position open when she returns from FMLA leave can avoid a retaliation claim by working with the employee to find another position and documenting the basis of its decision. 

That’s what helped a company defend itself against a retaliation claim filed by a call center representative who took FMLA leave due to a concussion.

The representative in Smart v. Geisinger Health, No. 4:20-CV-02198 (M.D. Pa. 12/20/22), fell and hit her head and suffered a concussion. Just before she exhausted her leave and was set to return to work, her supervisor told her the company was no longer going to hold her position open because the center was understaffed. The company was facing staffing issues that affected its ability to meet its performance goals. 

The company retrieved the representative’s work computer from her home, explaining that it would need to be used for new employees. However, the supervisor told her that the company was not terminating her and that it was placing her on medical leave so she could continue to receive benefits. In the meantime, she could call the human resources department to inquire about obtaining a new job. But according to the company, the employee didn’t do that. 

The representative sued, alleging that the company retaliated against her because she used FMLA leave.

The court explained that to establish a viable case of retaliation, the employee had to show: 1) she was protected under the FMLA; 2) she suffered an adverse employment action; and 3) the adverse action was causally related to her exercise of her FMLA rights.

Once an employee establishes the above, the employer must articulate a legitimate, non-retaliatory reason for its action. The worker may then move forward with the case only by showing that that the company’s reason was a pretext for retaliation.

Adverse Employment Action

Under the circumstances, the court found, the employee did not experience an adverse employment action. Failing to keep her job open was not adverse, especially given that the company allowed her to maintain her benefits and encouraged her to find another position. Further, this was not a case where the company told her she would be terminated when she was cleared to return to work.

“Because there is no dispute that [the company] was ready to work with [the employee] to find her a new position, the Court concludes that she did not suffer an adverse employment action,” the court wrote.

Causally Related

The court also found no causal connection between the employee’s use of FMLA leave and the company’s decision not to keep her job open. There was nothing to indicate that the company intended to engage in reprisal, the court indicated. “In fact, the record suggests the opposite conclusion: that [the company] did what it could to support [her],” the court wrote.

Legitimate, Non-retaliatory Reason

Even if the representative had suffered an adverse employment action, the court found that the company provided a lawful basis for its action when it cited its shortage of staff and inability to meet performance metrics. The company supported its contention that that was the basis of its action with deposition testimony from the supervisor and affidavits from members of its human resources department.

“In particular, that evidence explains that in June 2019—when [the representative] was on FMLA leave—its service levels fell below its baseline, which required hiring new staff and taking back [her] computer for those new employees,” the court wrote.

Pretext

Finally, the court rejected the supervisor’s assertion that the company was inconsistent in its reasoning because it claimed it was understaffed but denied her the opportunity to return the work. In fact, the court noted, the employee never contacted the company to inform it that she could return and to seek a new position. It was up to her to take those steps and she failed to do so.

The court granted the company summary judgment on the representative’s FMLA retaliation claim.

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