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Can I Lose My Job While Out On FMLA Leave? I Need The Best Medical Leave Employment Lawyer In Ohio!

On Behalf of | Jun 29, 2016 | Family Medical Leave Claims, Pregnancy Discrimination & Maternity Rights, Wrongful Termination |

Best FMLA Attorney Answer: What rights to I have to get my job back under the FMLA? What if my employer interferes with my attempt to take FMLA leave? Can I sue for wrongful termination if I was fired today while on medical leave?

FMLA, Family and Medical Leave Act, sick, medical leave, Employment, Lawyer, I was fired, today, retaliation, job, wrongful termination, Law Firm, attorney, Ohio, maternity leave, At Spitz, The Employee’s Law Firm, our employment law lawyers work every day with current and former employees who have been subjected to retaliation by bosses, managers, and supervisors in violation of the Family and Medical Leave Act (“FMLA“) in the workplace. (See Is My Health Issue Serious Enough To Get FMLA Leave?; What Can I Do If I Was Fired For Taking Approved FMLA Leave?; My Boss Demoted Me After I Took FMLA! – Call The Right Attorney; and Can My Boss Block My FMLA Leave? – Call The Right Attorney)

The FMLA is a federal law that lets covered employees take extended time away from work to handle certain family or medical needs. This federal law requires your employer to provide eligible employees with a maximum of twelve weeks of leave if the employer is a private business engaged in, or affecting, interstate commerce, that employed fifty or more employees in twenty or more weeks in the current or prior calendar year. Furthermore, an employee who works for a covered employer is eligible for leave if he or she worked for the employer for at least twelve months, and for at least 1,250 hours over the twelve months immediately preceding the need for leave. (See Top FMLA Lawyer: Am I Eligible For Medical Leave From Work?; and Are All Employees Eligible For FMLA? – Call The Right Attorney).

Moreover, § 2615 of the FMLA prohibits employers from discharging, discriminating or otherwise retaliating against an employee for exercising his rights under the FMLA. Importantly, when an employee returns from leave granted by the FMLA, he or she is entitled to be restored to his or her former job, or to an equivalent job, with equivalent pay, benefits, and other terms of employment.

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In Brown v. Diversified Distribution Systems, LLC, the United States Court of Appeals for the Eighth Circuit examined whether an employee could maintain an FMLA claim against her former employer involving the use of maternity leave. Specifically, in Brown, the employee, Brown, argued that her employer denied her an entitlement under the FMLA by failing to restore her to her account executive position, the same position she held prior to using FMLA leave, after she returned from her leave. According to the Court, an employee who takes FMLA leave “is entitled, upon her return to work, to be restored to a position that is the same as, or substantially equivalent to, the position that she occupied when the leave began.” In the case at hand, Brown was able to present evidence that after she returned from maternity leave, her employer reassigned her to a new position that was not equivalent to her former position. Diversified did not dispute this fact, and instead, argued that Brown could not maintain her claim because Diversified did not prevent Brown from using the FMLA leave.

However, as pointed out by the Court, Diversified confused a entitlement claim for an interference claim, and Brown’s case was the former, and therefore, it did not matter that Diversified allowed Brown to use FMLA in the first place; rather, it only mattered that when she returned, she was not restored to her previous position or an equivalent position. Based on these facts, the Court held that summary judgment was inappropriate:

Brown argues that Diversified denied her an entitlement under the FMLA by failing to restore her to the account executive position she held before she went on leave. An entitlement claim arises under § 2615(a)(1) when “an employer refuses to authorize leave under the FMLA or takes other action to avoid responsibilities under the Act.” Pulczinski, 691 F.3d at 1005. An employee who takes FMLA leave “is entitled, upon her return to work, to be restored to a position that is the same as, or substantially equivalent to, the position that she occupied when the leave began.” Walker v. Trinity Marine Products, Inc., 721 F.3d 542, 544 (8th Cir. 2013); see 29 U.S.C. § 2614(a)(1). When an employee claims the denial of a benefit to which she is entitled under the FMLA, she “need not show that an employer acted with discriminatory intent.” Pulczinski, 691 F.3d at 1005.

The Court also reversed the trial court’s granting of summary judgment regarding Brown’s FMLA retaliation claim, wherein she argued that that her employer retaliated against her by terminating her five days after she complained to human resources about whether her FMLA rights had been violated. As evidence of her retaliation claim, Brown pointed to the “temporal proximity” between her complaint and her termination, being just five days. This evidence, in addition to other supportive facts, led the Court to hold that summary judgment was improper on the retaliation claim:

Brown also argues that Diversified retaliated against her by terminating her five days after she had complained to human resources about whether her FMLA rights had been violated. A retaliation claim arises under § 2615(a)(2) if an employer takes “adverse action” against an employee who “opposes any practice made unlawful under the FMLA — for example, if an employee complains about an employer’s refusal to comply with the statutory mandate to permit FMLA leave.” Pulczinski, 691 F.3d at 1005-06. Diversified admits that Brown has established a prima facie retaliation case because she (1) engaged in protected activity when she complained that the company had violated her FMLA rights by assigning her to a backup position when she returned from leave, (2) suffered an adverse employment action when she was terminated, and (3) established a causal connection between the protected activity and the adverse employment action in that she was fired only five days after she complained about FMLA violations. See Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 999 (8th Cir.2011).

Since Brown has met her prima facie burden on her retaliation claim, Diversified “must articulate a legitimate, non-retaliatory reason for its action.” Wierman, 638 F.3d at 999. Diversified asserts that it fired Brown because it had lost one of its biggest clients and needed to cut 10% of its payroll by terminating underperforming employees. This “legitimate, non-retaliatory reason” causes the burden to shift back to Brown to “identify evidence sufficient to create a genuine issue of material fact” on whether Diversified’s “proffered explanation is merely a pretext for unlawful retaliation.” Id. There are “at least two ways a plaintiff may demonstrate a material question of fact regarding pretext.” Torgerson v. City of Rochester, 643 F.3d 1031, 1047 (8th Cir. 2011) (en banc). A plaintiff may show that the employer’s explanation is “unworthy of credence … because it has no basis in fact,” or “by persuading the court that a prohibited reason more likely motivated the employer.” Id. …

We have previously concluded that where an employer has known about its stated reason for taking adverse action against an employee “for an extended period of time,” but only acts after the employee engages in protected activity, the employer’s earlier inaction supports an inference of pretext. Wallace, 442 F.3d at 1122. Litzow’s relationship with Talbots predated Kostecky’s plan to fire him, and Kostecky only offered Talbots as a reason for retaining Litzow after Brown had complained to human resources. A “fact finder could reasonably infer” that if Litzow’s relationship with Talbots “alone had been the true motivation” for Brown’s termination, her discharge “would not have followed so closely on the heels” of her FMLA complaint.

The moral of this FMLA story is that there are a lot of ways that your employer, boss, manager or supervisor may try and screw with you for taking FMLA leave, but the law protects you and all employees from many different angles.

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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