Threat to Squeeze worker's Testicle Helps Drive Retaliation Case to Trial

Merrimack, NH (WorkersCompensation.com)–Even if a supervisor’s verbal abuse predates an employee’s FMLA leave, the escalation of abuse when an employee returns to work can help link it to the worker’s protected status. 

The fact that a supervisor’s alleged comments to the employee in Weed v. Spraying Sys., Co., No. 21-2813 (D. N.H. 07/05/22), became graphically violent on the first day of the employee’s return from leave helped ensure a jury would hear the case. 

The employee worked as a weld inspector for a manufacturer of spray nozzles. He claimed that his direct supervisor verbally harassed him. That harassment, he alleged, intensified, taking on a violent tone, after he took FMLA leave for a hernia and a subsequent swollen testicle. 

According to the inspector, when he returned to work, his supervisor was irate that he had been out so long and threatened to "grab his swollen testicle and squeeze it.” The supervisor also reportedly urged him to quit, saying the person who replaced him in his absence did just fine. 

On another occasion, when the inspector complained that chemical fuels in the facility were not being adequately ventilated, the supervisor allegedly became extremely agitated, moving within a foot from the inspector, balling his fists, sticking out his chest, and yelling at him. After additional such incidents, the inspector claimed, his stress rose, and he was in constant fear. 

Finally, tired of the abuse, the inspector resigned. He sued the company for retaliating against him based on his FMLA status. The company, in its turn, requested summary judgment. 

The court noted that to succeed on his retaliation claim, the inspector had to prove that the supervisor harassed him because he exercised his FMLA rights.  

The court acknowledged that the alleged abuse began prior to the employee informing the company of his condition and taking leave. It also conceded that some of the behavior may have been unrelated to the inspector’s protected status. Finally, it noted that the supervisor, in engaging in the alleged harassment, never mentioned the inspector’s protected status. 

Nevertheless, the inspector made out a case that was sufficient to go to a jury. In making that determination, the court relied on the following points, reflecting the types of facts and considerations that can push an employee’s case to trial. 

 
Relying on the above reasoning, the court held that a reasonable jury could find that the supervisor’s behavior was motivated by retaliatory animus regarding the inspector’s request for FMLA leave.  

The court denied the company summary judgment on the inspector’s claim.