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If The Person Who Fired Me Did Not Know About My FMLA Use, Can I Still Sue For FMLA Retaliation? I Need The Best Lawyer Reply!

On Behalf of | Sep 11, 2015 | Family Medical Leave Claims, Wrongful Termination |

Best Ohio FMLA Lawyer Answer: What does it take to prove FMLA retaliation? Can I sue for wrongful termination if I was fired right after returning from FMLA leave? How do I get FMLA leave?

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If you want to pursue a claim against your former employer for retaliating against you because you took leave under the Family and Medical Leave Act (“FMLA”), you will have to show (1) that you notified your employer of your intent to take FMLA leave (or actually took FMLA leave); (2) that you suffered an adverse employment action, such as being fired or demoted; and (3) there exists a causal connection between your exercise of your FMLA rights and the adverse employment action at issue. (See Top FMLA Lawyer Reply: Am I Eligible For Medical Leave From My Job?; Can My Employer Require A Second Opinion Before Giving Me FMLA? I Need A Lawyer!; Can I Use FMLA Leave To Visit A Sick Family Member? Best Lawyer Reply!; Can My Boss Require A Medical Diagnosis Before Approving My Sick Leave? I Need The Best Lawyer!; Is My Health Issue Serious Enough To Get FMLA Leave? I Need A Lawyer!).

If you can establish facts to support each of these elements (with the help of an employment law attorney), the burden then shifts to your employer to articulate a legitimate reason for taking an adverse action against you that had nothing to do with your taking FMLA. If your employer can do that, the burden shifts back to you to prove that the excuse they gave for taking an adverse action against you is lie to cover up unlawful retaliation, or what employment law lawyers call “pretext.”

Sometimes the organizational structure of a business can make it more difficult for an employee to demonstrate the connection between their FMLA leave, and the adverse action in question. For example, the decision to terminate someone might come from an upper level manager or someone in human resources who is not aware of the employees FMLA leave. What does an employee do in such a case?

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As our lawyer have blogged before in the employment discrimination cases (such as race/color, religion, gender/sex, national origin, age, disability discrimination cases), when this sort of “disconnect” occurs in discrimination cases, the courts have allowed employees to prove their case under the “Cat’s Paw” Theory of liability. (See Top Employment Lawyer Reply: Do I Have A Claim If I Was Fired By HR And Not By My Racist Boss?). The “Cat’s Paw” Theory of liability is an employment law principal founded upon an old fable where a monkey manipulates a cat to reach into a fireplace to grab chestnuts from a fire. As a result, the cat unwittingly burns herself while carrying out the wicked plane of the monkey, who gets to benefit from the fruits of his deception, i.e. the tasty roasted chestnuts. The cat’s paw was a tool to fulfill the monkey’s purpose of getting chestnuts from the fire. In the employment setting, an unwitting boss or HR representative is the cat’s paw, who relies on the devious manipulations of a manager or supervisor that fills the role of the monkey. Basically, even if the person who makes the decision to take an adverse action had no discriminatory or retaliatory motive, if they were influenced by someone who did, the employer can still be held liable.

In Curry v. Goodwill Industries of Kentucky, Inc., the  United States District Court for the Western District of Kentucky analyzed the cat’s paw theory of liability as it applied to FMLA cases. In Curry, the Defendant employer argued that Curry could not establish her FMLA retaliation claim because the person who terminated Curry, Wade, was not aware that Curry had made a request to take FMLA. However, the Court rejected this argument, finding that the employer could still be held liable under the cat’s paw theory of liability:

The Court rejects Defendant’s argument that since Wade as the decision-maker was not aware of Plaintiff’s FMLA leave request at the time he terminated her employment, Plaintiff cannot establish the second element of her prima facie case. First, a genuine dispute of material fact exists as to whether Wade knew of Plaintiff’s need for FMLA leave. See Crane v. Monterey Mushroom, Inc., 2012 WL 5835833, *18 (E.D. Tenn. Nov. 16, 2012). Plaintiff testified that in addition to notifying Katharine Burns who works for John Wade in the division office in Bowling Green of her need for FMLA leave, she also informed Wade of her need for a hysterectomy at a conference prior to July 31, 2009.

Second, even accepting Defendant’s argument that Wade was not aware of Plaintiff’s FMLA leave request, “`courts have imputed the retaliatory intent of a subordinate to an employer in situations where the subordinate exerts significant influence over the employment decision.’“ Algie v. Northern Kentucky University, 2013 WL 624396, *7 (E.D. Ky. Feb. 20, 2013)(quoting Long v. Teachers’ Ret. Sys. of Illinois, 585 F.3d 344, 351 (7th Cir. 2009) (citations omitted)(citing Romans v. Michigan Dept. of Human Services, 668 F.3d 826 (6th Cir. 2012) (discussing the “cat’s paw” doctrine in the context of a Title VII claim); Madden v. Chattanooga City Wide Serv. Dept., 549 F.3d 666 (6th Cir. 2008) (same)). In the present case, Plaintiff has presented evidence that Wooten, her direct supervisor, was aware of her request for FMLA leave, that Wooten instructed her to notify Burns, that Wooten created the list of company policy violations relied upon by Wade for termination, that Wooten investigated the alleged incident regarding the falsification of the time sheet, that Wooten submitted the Disciplinary Action Form that accused Plaintiff of falsifying her time sheet, and that Wooten recommended Plaintiff’s termination. Wade testified that he relied upon the recommendation and documentation of Wooten to terminate Plaintiff. In fact, Wooten acknowledged that Wade had never terminated a center manager without Wooten’s recommendation for termination. …

Viewing the facts in the light most favorable to Plaintiff, the Court finds Plaintiff has submitted sufficient evidence to establish that the person responsible for her termination knew that she was exercising her rights, or that her supervisor, via her recommendation of disciplinary action, exerted significant influence over the employment decision. … Thus, Plaintiff has established her prima facie case of retaliation.

So, what is the take away from Curry? If your employer retaliates against you in anyway after you take FMLA leave, or even ask to take FMLA leave, you should call the right attorney immediately. Even if the supervisor who is taking an adverse action against you doesn’t know about your FMLA, your employer could still be liable if they are being influenced by a boss who wants to retaliate against you.

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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