(Not So-) Benign Neglect Supports Retaliation Claim

By: Alexis Gutierrez

In Hofferica v St. Mary Medical Center, a staff nurse sued her hospital employer after she was fired—when she did not return—at the end of her approved FMLA leave. The employee alleged that, during her leave, she would call in to the hospital to provide leave updates — but the hospital did not return these calls.

The employee accused the hospital of rejecting her request for a brief Leave extension, and ultimately firing her for failing to return to work. The employee’s lawsuit alleged FMLA interference and FMLA retaliation.

  • Initially, the court acknowledged that the FMLA does not require reinstatement if FMLA leave expires. (However, the employer may still have to contend with time off as an accommodation under the Americans with Disabilities Act.)
  • Next, the court instructed that an FMLA-interference claim requires that the employee show that she was entitled to FMLA benefits and her employer denied them. (Here, the hospital defended this claim with evidence that the employee exhausted her FMLA leave and, therefore not entitled to reinstatement.)
  • Finally, and the issue that makes this case noteworthy to HR professionals, the court agreed that an employer has engaged in FMLA retaliation if it fires an employee because she took FMLA leave.
  • Among the ways to prove retaliation, is, what the employee argued, a showing of “ongoing antagonism.” In this case, the employee alleged among other things that her employer returned her calls before the Leave request, but stopped after the Leave was taken.

In the end, the court allowed the plaintiff to continue her lawsuit against her employer based solely on the employer’s change in behavior (not returning calls after the Leave request).

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