What Went Wrong? Policy Violations, Insults, Fuel Transgender Bus Driver's Retaliation Claim

Chicago, IL (WorkersCompensation.com) -- Sometimes an employer can successfully defend itself against an FMLA retaliation claim by pointing to the wide time-gap between the worker’s leave request and termination.

But that’s not always the case. The way an employer treated the worker around the time of the leave request can throw a wrench into that defense and help link the leave request and termination. That’s what occurred in a case involving a transgender school bus driving in Brown v. Chicago Transit Authority, No. 22 C 675 (N.D. Ill. 11/10/22).

In June 2018, the driver requested FMLA leave for medical procedures related to his transition. The CTA initially told him he was eligible for leave. But in October 2020, it charged him with FMLA falsification and suspended him without pay.

Meanwhile, CTA required him to undergo two medical exams. It then stated that the driver needed to have a third medical exam. Allegedly, CTA kept putting the worker off and ultimately failed to schedule, or cancelled, the exam.

On January 7, 2021, CTA terminated the driver for FMLA falsification, citing as a justification his failure to undergo a third medical exam.

The driver sued CTA for retaliating against him for exercising his FMLA rights.

CTA asked the court to throw out the case, arguing that the claim was not plausible, given the amount of time that passed between the driver’s request for leave and his termination.

To state a retaliation claim, the court explained, the driver had to allege that: 1) he engaged in a statutorily protected activity; 2) his employer took a materially adverse action against him; and 3) there is a causal link between the protected activity and adverse action.

The court observed that there is no bright-line timing rule that can be used to decide whether a retaliation claim is plausible, as other factors can be relevant, such as an ongoing pattern of retaliation.

The court decided that, accepting the driver’s allegations as true for now, there existed such a pattern in this case. This brings us to what the employer in this case (as well as the local teamsters union, which was also sued), may have done wrong. Employers should consider avoiding the same or similar actions to limit their exposure to liability.

What went wrong in the case?

According to the driver, the following were red flags that CTA terminated him because of his request for FMLA leave, despite the gap in time between the request and his firing:

Failure to follow internal policies. CTA allegedly required the driver to undergo two medical evaluations without granting provisional FMLA leave, contrary to CTA policy. After completing the second evaluation, CTA told the driver that he needed to complete a third exam. But each time he attempted to schedule the third exam, he was told to wait for instructions.

• Disparaging remarks. The local teamster president allegedly made "disparaging remarks" about the worker’s transgender status and told him that his "`bitching' would not work on the south side.
• Unfair evaluations. The driver indicated that his FMLA request or protected status impacted how CTA evaluated him.
• Disparate discipline. The driver claimed that CTA disciplined him for behavior for which others were not punished.

Citing the above, the court denied CTA’s motion to dismiss. While CTA focused on the timing of its termination of the driver, it took its eye off the “bigger picture,” the court wrote. The driver sufficiently alleged an ongoing pattern of retaliation such that he made out a viable case of retaliation, the court held.

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