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Can My Boss Write Me Up For Taking Medical Leave? I Need A FMLA Lawyer!

On Behalf of | Nov 13, 2014 | Employment Discrimination, Family Medical Leave Claims, Wrongful Termination |

Best Ohio FMLA Attorney Answer: What is the difference between FMLA interference and FMLA retaliation? Can I use FMLA when my short term disability runs out? Can my boss fire me right after I return from FMLA leave?

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The FMLA, or Family Medical Leave Act, enacted in 1993, requires covered employers to allow eligible employees to take unpaid, job-protected leave to care for their own serious medical condition or a spouse or a child who has a serious health condition. To be eligible, the employee must have been employed for at least one year with an employer, and the employer must have at least 50 employees within a specific mile radius, as well as other requirements.

Two different sections of FMLA law protect eligible employees, including a section that makes it unlawful for an employer to interfere with an employee’s permitted use of leave, or terminating an employee to avoid having to provide the employee with the leave. A second section makes it unlawful for employers to retaliate or take an adverse employment action against an employee who has already exercised his or her right to use FMLA leave.

In Wallner v. J.J.B. Hillard, W.L. Lyons LLC, a recent decided case out of the Sixth Circuit Court of Appeals (Ohio), explains the differences between these two different types of claims:

“There are two theories of recovery under the FMLA: an interference (or entitlement) theory and a retaliation (or discrimination) theory.” Hunter v. Valley View Local Sch., 579 F.3d 688, 691 (6th Cir. 2009). An interference claim stems from 29 U.S.C. § 2615(a)(1), which provides that an employer may not “interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [the FMLA].” Id.; see Wysong v. Dow Chem. Co., 503 F.3d 441, 446 (6th Cir. 2007).

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An FMLA retaliation claim, by contrast, arises from 29 U.S.C. § 2615(a)(2), which prohibits employers from discriminating against anyone “for opposing any practice made unlawful by [the FMLA].” Id.; see Grace v. USCAR, 521 F.3d 655, 669 (6th Cir. 2008). We have routinely construed this language as barring retaliation against anyone who has exercised his rights under the FMLA. See, e.g., Bryant v. Dollar Gen. Corp., 538 F.3d 394, 400–01 (6th Cir. 2008).

I was told that I cannot take medical leave. Do I qualify for FMLA? Can my boss stop me from taking FMLA? Can I be fired for taking FMLA? Can my evaluation consider my FMLA leave?

The plaintiff in this case was Jeanne Lee Wallner. Wallner worked for the defendant employer, Hilliard Lyons, from 1982 until her termination in 2009. In the summer of 2009, Wallner’s physician informed her she had to have knee replacement surgery. Wallner requested and received approval for FMLA leave in order to have the surgery, complete rehabilitation, and recuperate. Wallner’s physician estimated that Wallner would be off work from August 11, 2009 through October 11, 2009.

At some point thereafter, Sharon Landgraf, the Hilliard Lyons employee who was responsible for overseeing Wallner’s claim, mistakenly told Wallner that she had to return to work after her short term disability was scheduled to run out on September 22, 2009. Even after Wallner objected and tried to explain the difference between short term disability and FMLA leave, Landgraf insisted on Wallner returning to work after the short term disability expired.

Wallner returned to work on October 6, 2011, earlier than the original date estimated by her physician. But on the same date that Wallner returned, she was issued a final written warning and her coworker began tracking the time when Wallner appeared for work. Wallner’s coworker noted that Wallner was two to nine minutes late to work on five different occasions after her return. Only nine days after her return, Wallner was terminated. She filed suit thereafter alleging retaliation based on violations of the FMLA.

In addressing whether Wallner’s claims were improperly dismissed by the lower court, the Court of Appeals noted that:

We have observed previously that the pertinent portion of the FMLA—29 U.S.C. § 2615(a)—prohibits an employer from using an employee’s exercise of FMLA rights as “a negative factor” against the employee when making an employment decision. Hunter, 579 F.3d at 692 (quoting 29 C.F.R. § 825.220(c)). Because this standard “envisions that the challenged employment decision might also rest on other, permissible factors,” we have held that “the FMLA, like Title VII, authorizes claims in which an employer bases an employment decision on both permissible and impermissible factors.” Id.

In the end, even though Wallner had been tardy, and had been warned about being tardy in the past, the fact that her employer considered her leave in making the final decision weighed heavily in Wallner’s favor. Wallner’s final write-up contained the following “infractions:”

It was company policy to be at work at 8:00 AM. [Wallner] was persistently late (5-15 minutes) even in view of repeated warnings. This created a morale problem within the department.

She would occasionally call in the morning before work to inform us that she would be absent from work that day. Unscheduled absences were not permit[t]ed.

She failed two (2) Series 4 (Registered Option Principal) exams. It wasn’t required that she take the exams . . .

She had a hip [sic] replacement. I believe there was a standard allotment for recuperation of four (4) weeks. However, in case it was required an additional two (2) weeks could be allowed in case it was necessary. There was never any communication from her, to my knowledge, as to when she would return to work.

In a three[-]person department, an absence involved 33% of the work force. Options trading and surveillance are specialized and critical activities within the daily operations of the department and can’t be adequately replaced by a worker (next door).

An accumulation of deficiencies became intolerable.

Ultimately, the appeals court reversed the lower court’s decision to dismiss Wallner’s claim of FMLA retaliation. Even though Wallner may have been tardy, her supervisors skipped a level of discipline, noted that her absences and leave affected the department, and terminated her only nine days after her return to work. Even though Wallner’s case may not have been viewed as open and shut by the lower court, Wallner will finally be able to pursue her claim over five years after her termination.

If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA) or are being retaliated against for taking medical leave, you should call the right attorney as quickly as possible to schedule a free and confidential consultation. The phone number to contact an Ohio attorney for FMLA help is 866-797-6040. While you focus on your family medical needs, let our FLMA attorneys focus on your medical leave rights.


This employment law website is an advertisement. The materials available at the top of this medical leave page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get medical leave under the FMLA?”, “what should I do when my job won’t give me medical leave?”, “can my boss deny me medical leave?”, “what should I do if I was fired in retaliation for taking FMLA leave?”, or “is my employer allowed to…?”, your best option is to contact an Ohio medical leave attorney to obtain advice with respect to FMLA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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