Best Ohio FMLA Attorney Answer: What is the FMLA? How much time off do I get under the FMLA? What should I do if I took FMLA leave and then got a bad performance review? Can my boss factor my FMLA time off into my overall performance goals? How do I know if I was terminated for using FMLA leave? FMLA Retaliation Tips.
Most people never plan to use their Family
and Medical Leave Act (“FMLA”) leave. No
one wants to have a surgery, illness, disability, or some other life altering
event that literally puts their life on hold. When one of these events does
happen to an employee or a close family member of an employee, the last thing
anyone wants to think about is how they are going to take time off work. FMLA
is designed to help employees balance their work and family responsibilities by
allowing them to take reasonable unpaid leave for certain family and medical
Generally, employees are
eligible for leave if they have worked for their employer for at least 12
months, at least 1,250 hours over the past 12 months, and work at a location
where the company employs 50 or more employees within a 75-mile radius. Once an
employee is eligible for FMLA leave, and the employee is approved for FMLA
leave, that employee can use 12 weeks of unpaid leave, either all at once or
intermittently as directed by a doctor. Beyond just getting employees time off
to deal with their or their close family member’s health issues, the FMLA also
protects employees – an employer may not made adverse employment decisions
against that employee because they used FMLA. For example, firing an employee
for taking FMLA would give that employee a good claim for wrongful
termination. (See Can
I Be Fired For Asking About FMLA?; Can
I Sue If I Was Fired For Requesting FMLA Leave?; Can
My Boss Give Me FMLA Leave And Then Fire Me For Taking It?).
Even though this is the law,
and in a perfect world every employer would follow the law, the reality is that
employers still retaliate against employees all the time for using FMLA. When
this happens it’s important that employees know what their rights are and how
Now, it is that time in our employment law
lawyers’ blog where our attorneys give you an example of an employer who
screwed up an employee’s FMLA rights.
Like most people, Suzette
Walker never planned to need FMLA. Suzette worked for Verizon. She began
working there in July 1978. Suzette was a good employee, she worked her way up
to Engineer III Specialist. According to Verizon’s website, an Engineer III
Specialist is responsible for the design of the optical transport network,
among other things. According to her Complaint, Suzette played a vital role in the
company’s success for at least a decade. In total, Suzette worked for Verizon
for over 36 years. That kind of company loyalty is rare. I’m of the personal
opinion that loyalty should go both ways between employer and employee.
In 2013 Suzette had to use FMLA
leave to recover from shoulder surgery. Suzette was out for two and half months
and went back to work part time for about three weeks. After that, she returned
to work, and continued a full-time work schedule. Her manager wrote in her
Suzette was moved to her new department in the first half of
the year due to existing knowledge of the project and the City Permit Process.
Her transition to the Conduit department has been a hard transition. Suzette
has missed time due to an injury, which has made the transition difficult. The
Conduit area is still setup for the former Conduit Engineer and I have received
complaints about the conduit mailbox being full. We are not where the
Conduit/Highway Team needs to be at this time.
For her 2013 end of year evaluation, she received one of the lowest performance ratings that Verizon uses to score their employees. It’s illegal under FMLA for an employer to give an employee negative reviews because they used FMLA leave. This is the definition of FMLA retaliation. Suzette’s manager should not have used her use of FMLA at all in her performance review. Particularly, Suzette’s manager factored in tasks that were not being completed while Suzette was using FMLA leave. That’s illegal. The “conduit mailbox being full” should never have been mentioned in Suzette’s performance review. How could she possibly manage how full or empty the department mailbox is when she is not in the office? It is important to recognize these “red flags” when you see them. Suzette’s manager should have adjusted her performance metrics to take into account the time that she missed while using FMLA.
In April of 2015, Verizon told
Suzette that her position was going to be eliminated because the company was
going in a different direction and/or the focus of the company is changing.
They told her that her termination was part of a reduction in force. Suzette
said that she had more experience within the engineering department than any of
her other six former co-workers, yet she was the only one let go. However, the
other six people that worked in her department were not a part of the reduction
Additionally, when Suzette
asked why she was selected for the reduction in force, Verizon told her that
performance was a factor in the decision. Okay, sure. Sometimes, that is just
how it goes. Employers have to make tough decisions when revenue is down. It is
never an easy decision when forced to choose who to fire. Usually, performance
evaluations are a fair place to start. However, Verizon could not have used
Suzette’s performance reviews as the basis for selecting her for the reduction
in force because Suzette had excellent performance reviews, and repeatedly
earned positive feedback. In her Complaint, Suzette states that her most recent
performance evaluation, prior to her termination, reflects that her manager
found her to perform her job at a level of “sustained performance meeting
objectives, requirements and expectations and periodically exceeding them.” Before
she was fired, Verizon gave her a 3% raise and a large bonus.
This is a classic example of pretext. Pretext is when an employer has to come up with a
fake reason for the termination that sounds legitimate to cover up the real,
discriminatory reason for the termination. (See Employment
Discrimination Question: What Is Pretext?).
Verizon did not select white
employees to include in the reduction in force. Our employment
law attorneys are trained to hone in
on anything that appears to be discrimination. However, it does not take a
trained eye to realize that this was wrong and might be race discrimination. It is very important to recognize
that employees do not have to choose between two potential illegal basis for a
wrongful termination claim. Sometimes, it may be more than one unlawful act
such as religion,
discrimination. Getting help from knowledgably employment lawyers is the best
way to choose how to proceed with all or some of your claims.
Moreover, about a month after Suzette was let go, her location hired a Caucasian individual to perform her old position. Thus, Verizon replaced a Black employee who used FMLA with a White employee who did not. This goes a long way to proving an employment discrimination and wrongful firing claim, including FMLA retaliation.
And, going back to the issue of
pretext, how can there be a reduction in force, or sometimes called a RIF,
because the company chose to go in a different direction, but then one month
later, the company hired someone to fill that exact position? Losing one
employee and adding one employee leaves the employer with the exact same number
of employees – not a reduction or RIF.
Suzette also noticed that her managers scrutinized her time and attendance differently than her non-African American peers. Management always paid close attention to Suzette’s lunch breaks and working time but would not apply the same level of vigilance to her Caucasian co-workers. The pretext in this case almost jumps off the page. The purported reason for her termination was not the actual motivating factor. Clearly, she was being treated unfairly because of her race, and because she used FMLA. Again, FMLA retaliation for using the leave she was entitled to.
On June 21, 2015, Suzette sued
Verizon in Federal Court. She alleged that her termination was in violation of Title VII of the
Civil Rights Act of 1964
and FMLA Retaliation. Surprisingly, this case went all the way to the jury.
That’s pretty rare considering that most cases settle long before a jury is
involved, and second, this is surprising because Suzette had a strong case.
It’s unclear why Verizon wanted to try their luck against Suzette, but it did
not work out in their favor.
After a five-day trial, the
jury found that Verizon discriminated against Suzette and had retaliated
against her for taking FMLA leave in 2013. The jury thought that Suzette
deserved $188,000 in damages for back pay plus emotional distress of $10,000 related
to the discrimination.
The court affirmed the jury
verdict and then added other damages. The Court added $256,000 for front pay
for lost wages looking forward, $194,000 in liquidated damages, other
administrative costs, and attorney’s fees which made her total award $803,571!
Not too shabby at all. Suzette’s case is an example of how even the most loyal
employees can be discriminated against at the end of their career. It did not
matter that Suzette worked for Verizon for over 36 years. In the end, she was
discarded like her years of service never mattered at all. But in the end, she
did get what she deserved, which was revenge by way of a huge jury award.
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 best option is not to wait. Call our office at 866-797-6040. The Spitz Law Firm, and its attorneys
are experienced and dedicated to protecting disabled employees’ rights under the FMLA, ADA and Ohio employment
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