What Do You Think? Did Coroner's Office Retaliate Against Investigator for FMLA Leave?

Denver, CO (WorkersCompensation.com) – Sometimes, when an employee takes FMLA leave and loses her shortly after its through, it can be a sign of FMLA retaliation.

However, that’s not always the case, and, as the 10th Circuit recently had to consider, it could depend on what the employer’s reasons for removing the employee are.

A medicolegal death investigator for a county coroner’s office had anxiety, depression, and panic attacks. She regularly visited a counselor for mental health assistance and sought stress-relief therapy.

While meeting with her doctor, the investigator “broke down,” and the doctor advised her to take FMLA leave from her job, but the investigator declined to do so out of fear of being retaliated against.

The investigator received a written reprimand for alleged performance issues on the job that included struggling to stay awake and problems with completing tasks on time. Following this letter, other issues arose, including the investigator’s refusing to perform an exam on a decomposed body during a night shift.

Shortly after refusing to perform the exam, the investigator began experience chest pains, which her doctor indicated were a manifestation of her anxiety and depression. The investigator sought FMLA leave and attempted to have her leave requested certified through the office’s mental health program. The coroner expressed concern about the investigator’s not going through her primary care physician for FMLA documentation, stating in an email, “It is obviously high suspect that this employee was going to try to abuse this.”

After the investigator returned from leave, a supervisor met with her to cover the performance issues, and this meeting culminated with the investigator being placed on probation. At the meeting, the supervisor said there were “a million” reasons to terminate the investigator, including, dereliction of duty, fraudulent records, and using work time to conduct personal interent searches.

Two weeks after being placed on probation, the investigator allegedly continued to use the internet at work for personal reasons, which led to the office terminating her.

The investigator sued, claiming that the office retaliated against her for taking FMLA leave. In court, the office won the first round, prompting the investigator to appeal to Circuit Court.

Under the FMLA, and employee can show that her employer retaliated against her for exercising her FMLA rights by establishing that the employer’s stated reason for taking an adverse employment action against her was pretext for retaliation. An employee can make this showing by presenting inconsistencies or contradictions in the employer’s stated reasons for the action.

Did the investigator show FMLA retaliation on the office’s part?

A. Yes. The office changed the reasons for the investigator’s termination, which showed that it wanted to remove her from the job.

B. No. The various reasons the office gave for terminating her did not suggest dishonesty or bad faith.

If you picked B, you agreed with the court in Litzsinger v. Adams County Coroner’s Office, No. 21-1106 (10th Cir. 02/15/22), which held that the office consistently indicated that the investigator’s personal internet use at work was problematic.

Although the office may have had other reasons for terminating the investigator, the court explained that this did not show pretext.

“The additional justifications are not inconsistent with the coroner’s proffered reason for termination – rather, they are part of the same violation,” the court explained.

As a result, the court upheld the lower court’s ruling.

This feature does not provide legal advice.

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