Supervisor’s Comments Propel Fired Employee’s FMLA Retaliation Claim

Boston, MA (WorkersCompensation.com ) -- While an employee suing for FMLA retaliation may not ultimately win her case, it’s often a supervisor’s comments that propel the case to trial.
That’s what happened in Logue v. The Rand Corp., No. 21-11672-PBS (D. Mass. 04/04/23), a case involving a fired contract administrator for the Rand Corporation.

The administrator in Logue worked for Rand’s grants division. Her career there spanned 17 years, and reportedly had its ups and downs. Particularly toward the latter part of her career, she had intermittent performance problems. Those problems resulted in some complaints from clients as well as two performance improvement plans.

On Oct. 2, 2019, the administrator requested six weeks of medical leave to manage her high blood pressure. She returned to work full time in January 2020. During her leave, her work was split among two co-workers.

In February 2020, the new director of the administrator’s department contacted HR about a concern expressed by the administrator’s direct supervisor and by another employee who had some oversight over the administrator. She told HR that the two staff members "were `concerned [the administrator] will try to go back on out on a medical leave[.]'"

The company terminated the administrator on March 17, 2020.

The court noted that to establish FMLA retaliation, the employee had to show, in part, that there was a causal connection between her protected conduct and the adverse employment action. When determining causation, there are two possible standards courts may apply:

1. The “negative factor” test: If an employer uses the taking of FMLA leave as a negative factor in an employment action, that’s enough to show causation, even if other factors contributed to the decision.
2. The “but-for” test: An employee establishes causation if she shows that but for the exercise of her FMLA rights, the company would not have subjected her to the adverse employment action.

The court indicated that two of the signs that a causal connection exists are:

• When the termination (or other negative action) occurs soon after the employee exercises FMLA rights: and
• When supervisors make comments suggesting they have a retaliatory mindset toward FMLA.

Here, both circumstances were present, the court found.

The outcome of the case also could have hinged on the application of the more lenient standard–the “negative factor” test–which the 1st Circuit Court of Appeals has applied to FMLA retaliation claims.

If the 1st Circuit had applied that test in this case, it would have meant that even if the administrator was coming up short on her work responsibilities, as the company contended, that wouldn’t have been enough to insulate the company from liability. As long as the administrator showed that her use of FMLA leave played some role in the termination, that would have been enough to create a viable case that the company retaliated because of the employee’s exercise of FMLA rights.

The District Court noted that the 2d and 3d Circuits also currently apply the negative factor test.
However, the District Court stated that the administrator had a viable FMLA retaliation claim under the stricter “but-for” standard as well.

First, the court noted that the termination occurred just over two months after the employee returned to a full work schedule on Jan. 6, 2020. Second, two staffers, both of whom had oversight responsibility for the administrator’s work, articulated concern that the administrator would go back on leave.

Those two pieces of circumstantial evidence were enough to propel the case forward. The court denied the company’s motion for summary judgment.

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