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What Should I Do If I Was Harassed For Using FMLA? I Need A Lawyer!

On Behalf of | Jan 9, 2015 | Employment Discrimination, Family Medical Leave Claims, Wrongful Termination |

Best Ohio FMLA Attorney Answer: Can I get reduced hours under the FMLA? Can my manager make inappropriate comments about my health after I come back from FMLA leave? Can my boss threaten to demote me or fire me for taking FMLA leave?

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If any employers are reading this employment law blog, which they certainly should, it’s probably a good idea to not tell an employee who just returned from open heart surgery, “Don’t die at the desk.” Besides being illegal, which will be explained below, it is just plain offensive and wrong. Now that the free advice is out of the way, a recent FMLA retaliation decision from a federal court in Illinois makes clear that harassing, threatening to demote and eventually firing an employee because they took medical leave is very illegal. It also addresses that Family Medical Leave Act (“FMLA”) allows employees to take intermittent time off or work reduced hours.

While Terry Baier was working at an auto dealership in Illinois and in 2011, he had chest pains and eventually required open-heart surgery. As was his right, he took leave under the FMLA which provides protected leave from employment to care for the serious health condition of a spouse, the birth of a newborn child, serious health condition of a minor child or incapacitated adult child, and for the employee’s own serious health condition. Employees who qualify and request FMLA leave are entitled to get up to 12 weeks of job protected leave to use as medically necessary. (Am I eligible for FMLA? Click here to find out.)

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Baier returned to work after his open-heart surgery and because of the severity of his surgery, had work restrictions ordered by his doctor. These restrictions included a reduced work schedule. Amazingly, the reduced work schedule that was request was 8 hour days and a total of a 40 hour work week. So this was not a guy that was looking to work two or three hours per day. He was looking to work what you and I would consider just an ordinary work week. After his return, his supervisors repeatedly asked Baier when he would be “100 percent.” While not a good idea to ask an employee with health issue when they are going to be “100 percent,” the worst was yet to come for Baier.

Baier’s employer completely disregarded his work restrictions and forced Baier to work until midnight on 10 to 12 hour shifts. When Baier would complain about his schedule violating his work restrictions, Baier would be told, “that’s your job.” Shockingly, Baier’s supervisor then told Baier, “don’t die at the desk or I am going to drag you outside and throw you in the ditch next to the road.” Wow. I’m thinking that statement will not play well in front of a jury. Then, Baier was threatened with demotion and eventually wrongfully fired.

What you can see here is a pattern that is common in many employment cases. A company wants to get rid of an employee because of race, gender, national origin, filing a Worker’s Comp claim or what have you. So the boss starts saying mean things hoping to get the employee to quit. Employee stays. The boss makes the work conditions even harsher by adding extra work or criticizing performance. Employee still stays. Boss threatens even worse actions like a demotion. Employee still stays. So, boss and company, left with no choice fires the resilient employee.

The downright appalling mistreatment Baier had to endure after returning from FMLA leave led Baier to file a lawsuit claiming that his employer interfered with his right to take FMLA leave by disregarding his work restrictions and also retaliated against him for taking FMLA leave.

The Northern District of Illinois decided that there was more than sufficient evidence to allow the FMLA claims to be heard by a jury. The court held:

Here, Defendants move for summary judgment [arguing] that they did not deny Baier the right to any FMLA benefits. In response, Plaintiff argues that Defendants denied him intermittent leave to work a 40 hour week, and that Defendants denied him full restoration to his General Sales Manager position because they fired him shortly after his reinstatement. …

First, Baier argues that Defendants denied him the right to intermittent leave to work a40-hour work week. The Code of Federal Regulations defines “intermittent leave” as “FMLA leave taken in separate blocks of time due to a single qualifying reason.” 29 C.F.R. §825.202(a). What Baier appears to be arguing is not that he was denied “intermittent leave” to work a 40 hour week, but instead that he was denied a “reduced leave schedule.” A ”reduced leave schedule” is defined as “a leave schedule that reduces an employee’s usual number of working hours per workweek.” Id.; Ridings v. Riverside Med. Ctr., 537 F.3d 755, 765 (7th Cir.2008). ”An example of an employee taking leave on a reduced leave schedule is an employee who is recovering from a serious health condition and is not strong enough to work a full-time schedule.” 29 C.F.R. § 825.202(b)(1). ”Leave may be taken intermittently or on a reduced leaveschedule when medically necessary…for recovery from…a serious health condition.” 29 C.F.R.§ 825.202(b).

… Baier presents the following facts. After his surgery, Baier returned to work on October 26, 2011 with restrictions, including working for only limited periods of time up to 40 hours a week, and continuing his rehabilitation. Baier notified Oakbrook Toyota of his work restrictions—he provided it with letters from his physician, and he verbally explained his limited work hours to his supervisor Syed.  Nevertheless, when Baier returned to work, his written schedule listed his hours as 8:00 a.m. to 9:00 p.m. daily, six days a week. … When Plaintiff complained to Syed about having to work until midnight, Syed replied, “that’s your job.” Baier took that to mean he should keep quiet and work—he worked ten to twelve hours each day after his return from surgery, and only worked one eight hour day….

… On November 5, 2011, a little over a week after Baier returned to work and shortly after Barrett filled in as his supervisor, Barrett told him, “don’t die at the desk or I am going to drag you outside and throw you in the ditch next to the road.”…Barrett also told Bob Jackson that “[t]here was no F-ing way that Terry Baier was going to drop dead on [my] watch at Oak Brook Toyota.” If he did, Barrett would take Plaintiff across the street to the country club and put him there. Given that Barrett was the sole decision-maker in firing Baier, the content of Barrett’s remarks, and their close temporal proximity to Baier’s termination, they could raise an inference that Oakbrook Toyota terminated Baier because he exercised his rights under the FMLA.

You FMLA case does not need to be so severe. Many time discrimination and retaliation may not be as obvious. 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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