Plastic Rat on Desk, Termination Notice Spur Nutritionist's Retaliation Claim

Elizabeth City, NC (WorkersCompensation.com) -- When an employer fires an employee or takes other adverse employment action shortly after the employee asserts FMLA rights or takes leave, the employer exposes itself to a retaliation claim.

In one case, a school board’s decision to reduce a child nutrition secretary’s hours and to eliminate her job shortly after she complained about being denied FMLA leave and around the same time that she took leave for breast cancer exposed the board to a lawsuit in Taylor v. Elizabeth City Pasquotank Pub. Sch. Bd. of Educ., No. 2:22-CV-00018-BO-BM (E.D.N.C. 01/11/23)

The secretary participated in protests surrounding the police shooting of a black man in April 2021.

On June 4, she said, she was frightened to find a plastic black rat on her desk at work. Her boss said she had put it there as a prank. But the secretary believed it was a sinister threat and a response to her political activism. 

On June 7, the secretary contacted her HR department, complaining about the rat incident and about being denied FMLA leave for the birth of her granddaughters. HR launched an investigation into both issues.

Soon after, the school board allowed her to take FMLA leave to receive treatment for breast cancer.

On June 21, HR informed the secretary that it had completed its investigation. It also informed her that it was reducing her hours and that her position would be eliminated at the end of the month.

After the secretary completed her leave, she was unable to work due to her cancer.

The secretary sued the school board. She claimed that the board: 1) interfered with her FMLA rights; and 2) retaliated against her for exercising her FMLA rights when it reduced her hours and eliminated her position.

FMLA Interference

The court noted that after taking FMLA, an employee generally has the right to have his old job back, or an equivalent position.

The court added that an employee asserting FMLA interference must show, as an initial matter, that:

• The employer interfered with her exercise of her FMLA rights; and
• That the employer’s action harmed her.

In this case, the secretary could not show harm since, even if the job had been available, she was physically unable to return. Further, because the secretary could not return to work, the board had no obligation to reinstate her to her.

FMLA Retaliation

The secretary had more luck with her retaliation claim. 

To state a viable claim, the court observed, the employee had to show that:

• She engaged in a protected activity;
• She suffered an adverse action: and
• The protected activity caused the adverse action.

The court added that if an adverse action occurs not long after an employee engages in a protected activity, that’s often sufficient to show causation—at least, for purposes of stating an initial claim.

The court observed that the board argued the secretary could not base her claim on her FMLA leave because HR started investigating the FMLA and rat issues before she took her leave.

“However, the investigation itself was not the alleged adverse action. Rather, the reduction of hours and elimination of her position, as memorialized in the July 21 letter, was the alleged adverse action,” the court wrote. It was possible, the court added, that when the secretary began her leave, the board had not yet decided to reduce her hours or to eliminate her job. 

In this case, the closeness in time between her FMLA leave and the July 21 letter notifying her of the changes to her job was sufficient to support a viable claim.

The court therefore declined to dismiss the claim.

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