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Can My FMLA Leave Count Against Me At Work?

On Behalf of | Jan 8, 2019 | Family Medical Leave Claims, Firm News, Retaliation, Wrongful Termination |

How Can I Prove I Was Fired For Taking FMLA?

Family Medical Leave Act, wrongful termination, FMLA, Attorney, Best, Lawyer

As readers of our blog already know, 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.

We have previously blogged about § 2615 of the FMLA which 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. (See Can I Be Fired For Asking About FMLA?, My Employer Demoted Me Because I Took FMLA Leave!, Can My Boss Stop Me From Taking Medical Leave Under The FMLA? ).

The United States District Court for the Eastern District of Michigan examined a FMLA retaliation case in Miller v. Detroit Public Schools. Miller was a math teacher who developed a serious health condition during the 2010-2011 school year for which she was hospitalized twice and had numerous absences. In the following academic years her condition worsened and she requested FMLA. The school sent Miller the FMLA form, but claims that it has no record of her request. Miller was absent 31 days because of her health condition. In April 2012, Miller and numerous other teachers were laid off, and placed on a recall list. To be eligible for recall, the teachers were scored and necessitated a score of 70 or higher to be recalled. All thirty one of Millers absences were counted against her, causing her to lose 15 points for attendance, and giving her an overall score of 64 so that she could not be recalled.

Was not recalling Miller after a layoff retaliation under the FMLA? The court explained how Miller could make a case for retaliation:

In order to establish a prima facie case of retaliation under the FMLA, an employee  must show that: (1) she was engaged in a statutorily protected activity; (2) that Defendants knew of her protected activity, (3) she suffered an adverse employment action; and (4) that a causal connection existed between her protected activity and the adverse employment action. Skrjanc v. Great Lakes Power Service Co., 272 F.3d 309, 314 (6th Cir. 2001). If a prima facie case is established, Defendants must come forward with a legitimate non-discriminatory reason for their actions. Id.  If Defendants meet their burden, then Plaintiff has the burden of showing that Defendants’ articulated reason “is in reality a pretext to mask discrimination.” Id.

The school did not dispute that Miller suffered from a serious health condition and took leave for that condition. Further the school knew that Miller was taking leave for that serious health condition, and Miller provided medical verification for those absences. The adverse employment action in this case was the low score on Miller’s evaluation which precluded her from being recalled back to teaching the following year. The court noted that the School did not show a legitimate, non-discriminatory reason for their actions. Thus, the court found there were questions of fact for the jury to decide, and Miller’s case will move forward.

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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