Best Ohio FMLA Lawyer Response: How can I show retaliation by my company for taking FMLA leave? Can my boss treat me differently after I take FMLA leave? Can my manager treat me worse than other employees who don’t use FMLA leave?
As our employment law lawyers have blogged about medical leave before, the Family Medical Leave Act (“FMLA”) is a federal law that allows employees who meet eligibility requirements to use twelve weeks or less of unpaid leave from work to receive medical treatment or medicalcare for their own serious health condition, to care for the serious health condition of a spouse, the birth of a newborn child, or to care for a child’s serious health condition.
The approved leave can either be used all at one time, which is called continuous FMLA leave; or split up as needed for medical appointments or medical flare-ups, which is called intermittent leave. Once the FMLA leave is exhausted, the employer may be able to legally terminate the employee if the employee fails to return from leave.
As we’ve blogged about before, the law is also designed to prevent an employer from:
- Wrongfully denying an eligible employee from taking FMLA leave;
- Restoring an employee who used FMLA leave to the same employment status that the employee enjoyed before the leave; or
- Retaliating against the employee who has exercised his or her right to take FMLA leave.
If your employer has engaged in the behavior described above, you may be able to recover monetary losses resulting from your employer’s wrongful conduct in addition to any interest that money would have accrued since the wrongful conduct took place. The law also provides that a wronged employee may be able to recover liquidated damages.
Liquidated damages, in this sense, means an amount equal to the actual losses and/or reinstatement to your old job or promotion to a new job. By way of example, the recent case of a miner in Wyoming shows just how powerful liquidated damages can be. The FMLA case, Smothers v. Solvay Chemicals, Inc., involves a plaintiff who worked in Wyoming as a trona miner. In the interest of full disclosure, I had to look up just what “trona” is. Apparently, it is a mineral that makes up the primary source of sodium carbonate in the U.S. Sodium Carbonate is used as a water softener and trona is also used in manufacturing glass, chemicals, paper, detergents, textiles, and food.
Smothers was employed by Solvay Chemicals, Inc. as a surface maintenance mechanic from 1990 through 2008. In 1994 Smothers suffered a neck injury and developed a degenerative disc disease in his spine. Between 1999 and 2004 Smothers had multiple surgeries, but still had ongoing issues with pain, headaches, sleep disruption, and lower back problems. Despite his medical conditions, Smothers was considered to be an excellent employee, but the company did not seem to be happy with his regular absences and utilization of intermittent FMLA leave. Smothers’ supervisor attempted to get him to switch shifts so the company would not have to pay overtime to an employee to provide coverage to Smothers’ missed graveyard shifts. However, if Smothers made the shift change he would lose $7,000 per year. Smothers’ supervisors also gave him a negative performance review based on absenteeism and denied Smothers a chance at a promotion due to absenteeism.
Eventually, Smothers was terminated by Solvay for an alleged safety issue involving Smothers actions in completing maintenance on equipment used for acid washing. Another mechanic who was working on correcting a problem was attempting to get a permit to perform maintenance, but Smothers could see that the line was already broken. Smothers removed a damaged piece from the equipment but did not follow a procedure for locking out the equipment. Although Smothers may not have violated policy by failing to wait for a line break permit, he agreed that he should have locked out the equipment. At some point during the time when Smothers was repairing the damaged piece, he had a confrontation with another mechanic. There were conflicting reports about what occurred during the confrontation, but the company did not allow Smothers to provide his side of the story. The company did however contact the other mechanic, and several individuals from the company spoke to or received information from him.
According to the company, Smothers was fired for violating safety policies, but Smothers presented evidence that other employees had engaged in similar or worse violations were not terminated, while he was. After the lower court dismissed Smothers claim, an appellate court overturned the decision and allowed Smothers to proceed to trial on the FMLA issue. The United States Tenth Circuit Court of Appeals held:
The evidence viewed in Mr. Smothers’ favor shows that: (1) Solvay treated Mr. Smothers differently from similarly situated employees who committed comparable safety violations; (2) Solvay’s investigation into Mr. Smothers’ quarrel with Mr. Mahaffey was inadequate; and (3) Solvay managers previously took negative action against Mr. Smothers because of his FMLA-protected absences. Together these grounds create a triable issue of fact as to whether Mr. Smothers’ FMLA leave was a substantial motivation in Solvay’s decision to fire him. …
“[E]mployees who are similarly situated must have been disciplined for conduct of comparable seriousness in order for their disparate discipline treatment to be relevant.” McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir.2006) (quotations omitted). When comparing different treatment of similarly-situated employees, “the comparison need not be based on identical violations of identical work rules; the violations need only be of comparable seriousness.” Elmore v. Capstan, Inc., 58 F.3d 525, 530 (10th Cir.1995) (quotations omitted).
Solvay contends that Mr. Smothers’ offense was worse than the other employees’ offenses because he acted deliberately and violated a clear policy. But the record indicates other employees also deliberately violated clear policies. For example, foremen Mr. C and Mr. D acted deliberately when they broke into a lock box and energized equipment while it was being worked on. Solvay says it did not fire Mr. C or Mr. D because they took at least some safety precautions, apologized, and promised not to repeat the mistake. But Mr. Smothers also apologized and promised not to repeat the mistake. Moreover, Mr. Smothers also took precautions by ensuring the valve was closed. Solvay also emphasizes that Mr. Smothers had been trained on the safety rules. But the record indicates Solvay required every employee to complete the same safety training. Drawing reasonable inferences in Mr. Smothers’ favor, the evidence shows Mr. Smothers and the similarly situated employees he identified all received the same training.
In short, Mr. Smothers has established a genuine and material factual issue as to whether he was punished more harshly than similarly situated employees after comparable safety violations. A reasonable jury could therefore infer that the safety violation was pretext for unlawful retaliation. Horizon/CMS Healthcare Corp., 220 F.3d at 1198 (“[D]ifferential treatment of similarly-situated employees may support a finding of pretext.” (emphasis omitted)).
Solvay responds that, unlike these other employees, Mr. Smothers’ offense extended beyond the safety violation to his quarrel with Mr. Mahaffey. Mr. Smothers’ behavior toward Mr. Mahaffey might have been relevant. But as we discuss next, a jury could still reasonably infer pretext because Solvay did not adequately investigate the quarrel that purportedly drove its decision.
After that, a jury found in Smothers’ favor and awarded him $865,000. When liquidated damages are assessed, the final award will be over 1.5 million dollars.
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.
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