XVIII PROHIBITED EMPLOYMENT PRACTICES A. Employers may not interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided under the FMLA. 29 U.S.C. § 2615. 1. Discrimination a. Direct evidence of discrimination i. Medley v. Polk Company, 260 F.3d 1202 (10th Cir. 2001). Employer’s honest belief that employee had abandoned her job was a legitimate, nondiscriminatory reason for terminating the employee under the FMLA. Although the plaintiff originally left her job in order to care for her father, who had suffered a heart attack, she failed to keep in contact with her employer, and left her employer no contact information. In addition, plaintiff failed to provide any medical certification of her father’s ailment, as requested by employer. Finally, when she contacted her supervisor, she gave reasons other than her father’s condition for her absence, and offered to resign. An employer who discharges an employee honestly believing that the employee has abandoned her job and is otherwise not using FMLA leave for its intended purpose, would not be in violation of FMLA, even if its conclusion is mistaken, since this would not be a discriminatory firing. ii. Connel v. Hallmark Cards, Inc., 2002 U.S. Dist. Lexis 1945 (D. Kan. 2002). Employee failed to produce direct evidence that her termination was an act of discrimination in response to her taking of FMLA leave. The fact that defendant terminated plaintiff's employment for events that occurred while plaintiff was on FMLA leave does not necessarily mean that defendant fired her because she took FMLA leave. The plaintiff produced no evidence in the form of statements by any of defendant's managers that plaintiff's exercise of her FMLA rights was a factor in her discharge. Rather, defendant's managers stated time and again that it was plaintiff's misuse of her FMLA leave and her subsequent dishonesty that were factors in her discharge. iii. Hillman v. Hamilton College, 1998 U.S. Dist. LEXIS 5064 (N.D.N.Y. 1998). Issue of fact existed as to whether discharge of assistant college dean was pretextual where plaintiff received positive performance evaluations, was terminated soon after she took leave, document in supervisor's handwriting referred to FMLA leave and her termination on the same page, and supervisor was overheard asking someone whether he could "non-renew" plaintiff's contract after she asked for leave. iv. Kur v. Fox Valley Press, Inc., 1997 U.S. Dist. LEXIS 2304 (N.D. Ill. 1997). Advertising Account Manager presented sufficient facts to make out a claim for violation of the FMLA through retaliation when she alleged that upon her return from her FMLA leave, the company had set pretextual performance goals, other employees approved sales rate requests without her signature, her supervisors were regularly meeting with her staff without her presence, she was once confined to the office and ordered not to make any sales, and she was falsely accused of circulating a letter critical of management. However, she failed to establish a claim for retaliation for a future leave based on these same acts, because the planned leave did not qualify under the FMLA. v. Dodgens v. The Kent Manufacturing Co., 955 F. Supp. 560 (D. S.C. 1997). Manufacturing company did not interfere with its employee’s FMLA rights by telephoning him twice while on FMLA leave in order to request employee take demotion for poor performance. The phone calls did not constitute interference with FMLA rights because the employer did not violate the FMLA, refuse to authorize FMLA leave, discourage the employee from taking such leave, or manipulate its workforce to avoid FMLA responsibilities. vi. Peters v. Community Action Committee, Inc., of Chambers- Tallapoosa-Coosa, 977 F. Supp. 1428 (M.D. Ala. 1997). Issue of fact existed as to whether reassignment of secretary to position with lower pay and benefits following her return from FMLA leave was discriminatory. Despite the fact that plaintiff's employer suffered from financial difficulty at the time she returned from leave, evidence existed that all other employees who were adversely affected by these financial problems were subsequently made whole and plaintiff's supervisor was overheard criticizing her for taking time off to care for her sick child. vii. Monica v. Nalco Chemical Co., 1996 U.S. Dist. LEXIS 19114 (E.D. La. 1996). The fact that one of the six absences that employer used as a basis for terminating plaintiff for excessive absenteeism was an FMLA covered absence creates a genuine issue of material fact that his discharge was in retaliation for the FMLA covered leave. The fact that employer under its established policy could have terminated the employee after the first five non- FMLA absences occurred and an additional non-FMLA covered absence was not included as a basis for the discharge decision does not change the fact that the jury could find that the single FMLA leave did play a role in the termination decision. viii. Kaylor v. Fannin Regional Hospital, 946 F. Supp. 988 (N.D. Ga. 1996). Hospital’s termination of technician who had previously taken FMLA leave for “excessive use of sick time” did not violate the FMLA because in this case the term “excessive” referred to misleading abuse rather than to too large a number of absences. Specifically, the technician had not canceled and did attend a non- FMLA protected doctor's visit he had scheduled, despite having been told he could not have the day off and his having assured his manager he would not take it off. The fact that the hospital had granted FMLA leave to the technician in the past and its record with other employee's FMLA leaves supported the finding of no violation. ix. George v. Associated Stationers, 932 F. Supp. 1012 (N.D. Ohio 1996). Company could not terminate warehouse worker for violating its absenteeism policy as a result of his taking an FMLA covered leave. Company attendance policy, where each sick leave regardless of length was counted as one "occurrence" and seven "occurrences" were grounds for dismissal, violated the FMLA as it did not exclude as an "occurrence" an absence covered by the FMLA. x. McCown v. UOP, Inc., 1995 WL 519818 (N.D. Ill. 1995). Secretary who was terminated for excessive absenteeism, poor performance, and excessive personal telephone calls failed to present direct evidence of FMLA discrimination when she produced a statement by her supervisor that now that she was taking 6 hours of FMLA leave per week it was doubly important for her to be present at her job when scheduled. The most this evidence suggests is that plaintiff's supervisor was unhappy with her reduced work schedule, and plaintiff failed to show a link between this statement and her employer's decision to terminate her. b. Prima facie case i. Howard v. United States Postal Serv. 2002 U.S. App. LEXIS 15845 (Fed Cir. 2002). Protection Board found that it did not have jurisdiction over postal worker’s claim that the Postal Service had denied her requests for leave under the FMLA. Although the worker, a disabled veteran, was a preference-eligible employee, she did not show the requisite "adverse" agency action, i.e., removal, a suspension for more than 14 days, a reduction in pay or grade or a furlough of 30 days or less required for the Board to review her claim. ii. Bailey v. Southwest Gas Company, 275 F.3d 1181 (9th Cir. 2002). Customer Service Representative who was terminated for insubordination in relation to her employer’s FMLA inquiry had no basis on which to bring an FMLA claim. The plaintiff failed to present a genuine issue of material fact regarding her claim of interference with her rights under the FMLA. When she complained of drowsiness on the job due to soporific medication, the employer requested FMLA medical certification, and the plaintiff’s physician failed to complete the forms properly. The plaintiff conceded that she did not have a qualifying health condition, that she never requested FMLA leave, and that she would not have taken FMLA leave had it been offered. Because the plaintiff never sought to invoke her FMLA rights, she could not argue that the employer interfered with the exercise of her rights by suggesting the FMLA might apply, providing her with information on it, and seeking a medical certification of her condition. iii. Mincey v. City of Bremerton, 2002 U.S. App. LEXIS 4284 (9th Cir. 2002). Community Resources Division Manager terminated for exceeding his twelve weeks of annual FMLA leave failed to establish that he had been treated in a different manner than other similarly situated employees. Plaintiff alleged that he was the only employee fired for taking FMLA leave or not given the opportunity to extend his FMLA leave, but failed to identify any other employees who were given the opportunity to extend FMLA leave or who were not fired for failing to return from FMLA leave. Defendants argue that Plaintiff was advised of the procedure for either extending his FMLA time or returning to work, and Plaintiff did not take advantage of either procedure. iv. Earl v. Mervyns, Inc., 207 F.3d 1361 (11th Cir. 2000). Store area coordinator with Obsessive-Compulsive Disorder failed to raise an issue of fact when her employer fired her in accordance the specific terms of its detailed policy, for repeated and numerous punctuality infractions on the same day that she requested an FMLA leave. The employer had decided to terminate employee for excessive tardiness after multiple warnings. The employer’s action followed its established policy, and thus plaintiff could not show a causal connection between her termination and her exercise of her FMLA rights, nor any pretext for that termination. v. King v. Preferred Technical Group, Inc., 166 F.3d 887 (7th Cir. 1999). Assembler who was terminated for not returning to work after taking FMLA leave for sarcoidosis established a prima facie case of discrimination under the FMLA. At the prima facie case level, the fact that plaintiff was discharged one day after returning from FMLA leave is sufficient to raise an inference of a causal link between her leave and her discharge. vi. McCauley v. Hydrosol, Inc., 2002 U.S. Dist. LEXIS 22338 (N.D. Ill. 2002). Employer discriminated against an assembly-line worker who took 185 sick days over four years by improperly demoting her and terminating her during a reduction in force. Prior to her demotion and termination, the plaintiff’s number of unexcused absences decreased and a large number of her absences fell under the protection of the FMLA. Thus the plaintiff showed that her FMLA time was considered both in her demotion to part- time status and that it “tipped the balance” in favor of her discharge as part of a reduction in force. vii. Thelma Patricia Smith v. Board of Education of Carroll County, 248 F.3d 1177, (D. Md. 2002). The fact that the employer denied plaintiff access to the sick bank and ignored a medical statement that she submitted were not sufficient to establish a FMLA violation. The plaintiff failed to allege the reason for which her employer denied her request for sick leave or that she was suffering from a serious health condition that would have entitled her to relief. Plaintiff submitted a medical report after her termination, and thus her employer did not base her termination on her condition. viii. Mann v. Mass. Correa Electric, 278 F.3d 93 (S.D.N.Y. 2002). Electrician with a back injury raised an issue of fact that she was fired because she took FMLA-protected leave. While it is undisputed that the Port Authority, who owned the building in which the employer was headquartered, ordered the defendant to terminate the plaintiff’s employment while on sick leave, the employer has presented no legal authority for the proposition that any discriminatory action it took can be excused by the fact that its customer or client ordered it to take the action. The role of the Port Authority would not excuse the employer’s conduct so long as the plaintiff is able to show that her need to take FMLA-protected leave was a motivating factor in the employer’s decision to fire her. The loss of the plaintiff’s employment was an adverse action even though the employer agreed to rehire her at another location should a position become available. ix. D'amico v. Compass Group USA, Inc and Cary Orlandi, 2002 U.S. Dist. Lexis 7111 (D. Mass. 2002). District Manager who suffered a series of demotions and was eventually terminated in the year following his taking of FMLA leave for depression, failed to produce evidence of a discriminatory or retaliatory motive on the part of the employer. Although the plaintiff produced evidence of insensitive and vindictive behavior on the part of the plaintiff’s supervisor, it did not rise to the level of establishing a discriminatory motive on the defendant’s part. In addition, although the plaintiff did suffer a rapid descent in fortunes with the employer, the year separating his taking of FMLA leave and his resignation was simply too extended a time to establish a causal connection between the two events. x. Alifano v. Merck & Co. Inc., 264 F.3d 1317 (E.D. Pa. 2001). Security investigator with fibromyalgia and chronic fatigue syndrome, who was terminated after a medical leave due to her inability to perform essential functions of the position, failed to establish a prima facie case of discrimination and wrongful termination under the FMLA. Plaintiff availed herself of her leave rights and upon returning to work, informed her employer that she was unable to travel or work more than eight hours a day. Since she was unable to fulfill an essential function of her job, that is, traveling throughout the northeastern United States, and was thus not qualified for her position, she did not suffer an adverse employment action under the FMLA. xi. Albert v. Runyon, 1998 U.S. Dist. LEXIS 7505 (D. Mass. 1998). Post office could not require district manager to undergo fitness for duty examination pursuant to Postal Service regulations where there was no evidence that it would have required such an examination if she had not taken leave. The mere fact that an employer could require an employee to undergo a medical examination does not allow it to do so under the FMLA unless it would have done so regardless of whether the employee took FMLA leave. xii. McCown v. UOP, Inc., 1995 WL 519818 (N.D. Ill. 1995). Secretary who was on a reduced leave schedule to care for her daughter did not establish a prima facie of discrimination on the basis of her use of FMLA leave because she failed to show that she was meeting her employer's legitimate job expectations. Her employer warned her about her high level of absences and terminated her for excessive absenteeism according to a company policy which allows termination for excessive absences even if they are approved by the employee's supervisor. In addition, the employer presented legitimate, non-discriminatory reasons for her termination, including her excessive absenteeism, poor performance, and excessive personal telephone calls. c. Legitimate non-discriminatory reasons i. Harig v. Boeing Co. 2002 U.S. App. LEXIS 17198 (9th Cir. 2002). Airplane manufacturer did not discriminate or retaliate against employee by denying reinstatement from FMLA leave. Employer had good cause to not reinstate Harig once it learned of the death threats he made against a co-worker. ii. Trivisonno v. Metro. Life Ins. Co. 39 Fed. Appx. 236 (6th Cir. 2002). Arbitrator of FMLA claim did not completely disregard the law by finding in favor of an employer who terminated an Account Representative for not meeting her sales quota. The employee presented a letter from her employer that she received while on leave, warning her that she would be terminated if she failed to meet her sales quota. The employer explained that the letter was merely an automatically generated warning, and that they had explained the possibility of granting an extension to her upon her return. Upon her return, the employer terminated her because she made no effort to reach her quota and stopped showing up for work. Thus, the extension issue never arose. iii. Skrjanc v. Great Lakes Power Service Company, 272 F.3d 309 (6th Cir. 2001). Power company had legitimate, nondiscriminatory reason to terminate a pump technician who intended to take 12 weeks of FMLA leave for foot surgery later in the year; namely, the employer had discontinued operating as a pump franchisee, and thus had terminated other pump technicians. In addition, the plaintiff had taken 12 weeks of leave in the prior year without incident which added credibility to their proffered reason for firing the plaintiff. iv. Medley v. Polk Company, 260 F.3d 1202 (10th Cir. 2001). Employer’s honest belief that employee had abandoned her job was a legitimate, nondiscriminatory reason for terminating the employee under the FMLA. Although the plaintiff originally left her job in order to care for her father, who had suffered a heart attack, she failed to keep in contact with her employer, and left her employer no contact information. In addition, plaintiff failed to provide any medical certification of her father’s ailment, as requested by employer. Finally, when she contacted her supervisor, she gave reasons other than her father’s condition for her absence, and offered to resign. An employer who discharges an employee honestly believing that the employee has abandoned her job and is otherwise not using FMLA leave for its intended purpose, would not be in violation of FMLA, even if its conclusion is mistaken, since this would not be a discriminatory firing. v. Horwitz v. Board of Education of Avoca School District No. 37, 260 F.3d 602 (7th Cir. 2001) Insubordinate behavior was a sufficient reason for elementary school to terminate teacher while on certified FMLA leave for depression. vi. Ahmarani v. Sieling & Jones Inc., 211 F. Supp. 2d 658 (D. Md., 2002). A plant manager fired after taking leave for prostate cancer surgery had no claim under the FMLA against his employer, a wood veneer and paneling manufacturer, because his superiors decided to fire him before he requested leave and the reason for his termination was based on his inability to communicate and his defensive attitude. Employees on FMLA are not entitled to restoration to their prior position if the employer can demonstrate that it would have terminated them for reasons unrelated to the FMLA leave. vii. Schafer v. Querrey & Harrow, Ltd., 2002 U.S. Dist. Lexis 3695 (N.D. Ill. 2002). Law firm articulated legitimate nondiscriminatory reason for taking a number of alleged retaliatory actions against a secretary upon return from FMLA childbirth leave. The employer explained that she was not given a permanent desk or an emergency phone line because they were in the process of reconfiguring desk assignments when she returned from her leave; she did not receive a pay increase for 1999 because they were awarded based on performance evaluations, and Schaefer's evaluation for that year would not support an increase; finally, the employer terminated the plaintiff for her repeated problems with tardiness and unexcused absences unrelated to her FMLA leave. Because the plaintiff offered no evidence to contradict the validity of these reasons for the allegedly retaliatory actions, summary judgment was properly granted in favor of the defendant. viii. Connel v. Hallmark Cards, Inc., 2002 U.S. Dist. Lexis 1945 (D. Kan. 2002). Stationary company articulated two legitimate nondiscriminatory reasons for terminating employee who had taken FMLA leave. The first reason was her misrepresentation to a supervisor that, due to migraine headaches, she would not be able to work and, while on FMLA leave, she attended and camped at a 4-H Fair. abuse of FMLA leave constitutes a legitimate, nondiscriminatory reason for plaintiff's discharge. The second reason was a misrepresentation to a supervisor about the dates she had attended the fair and her claim that she had not camped at the fairgrounds, when, in fact, she had. A plaintiff's dishonesty may constitute a legitimate, nondiscriminatory reason for plaintiff's discharge. ix. Carpenter v. Northwest Airlines, Inc., 2002 U.S. Dist. LEXIS 2146 (D. Minn. 2002). Airline did not deny customer service representative her right to reinstatement under the FMLA when it terminated her one day after she returned from FMLA leave. The airline’s articulated reason of performance issues constituted a legitimate nondiscriminatory reason for the demotion. Disqualification from a position for performance reasons, which would be valid in the absence of FMLA leave time, does not constitute a violation of the restoration provisions of the FMLA simply because it occurs after the employee returns from FMLA leave. x. Kennebrew v. New York City Housing Authority, 2002 U.S. Dist. Lexis 3038 (S.D.N.Y. 2002). Housing authority properly decided to terminate secretary for work performance issues prior to her request for FMLA childbirth leave. No FMLA violation occurs where an employer has already decided to terminate the employee before the employee requests FMLA leave. The defendant produced evidence in the form of dated memos that when the plaintiff requested her leave of absence the decision to terminate had already been made two days earlier. The plaintiff thus was not entitled to FMLA leave because the wheels of termination had already been put into motion before she requested leave. It is irrelevant that she was not told of that decision until after she requested leave, or that she did not receive the official termination letter until a later date, because even though her termination had not been implemented, it is undisputed that the final decision to terminate her employment was made before she requested leave. xi. Lacey-Manarel v. Mothers Work, Inc., 2002 U.S. Dist. Lexis 5541 (S.D.N.Y. 2002). Employer produced sufficient evidence that the termination of a Director of Leased Stores Division upon her return from maternity leave was for legitimate business reasons and not pretextual. While plaintiff could not be lawfully terminated because she was on maternity leave, the fact of her leave did not entitle her to immunity from the personnel changes that were occurring at the employer due to a company-wide reorganization that occurred while she was on maternity leave. The FMLA does not entitle an employee taking FMLA leave to any greater rights than employees who have not taken such leave. xii. Byrne v. Avon Products, Inc. 2002 U.S. Dist. LEXIS 9252 (N.D.Ill. 2002). Employer properly terminated stationary engineer for neglecting his work responsibilities by sleeping and reading in the carpenter's shop for extended periods, even though he was hospitalized and thus entitled to FMLA leave. Employee could not base a FMLA claim on his employer’s denial of FMLA because employer would have terminated him regardless of his entitlement to such leave. xiii. Klaus v. Builders Concrete Co., 280 F.3d 403 (N.D. Ill. 2002). Construction company did not discriminate against truck driver when it laid him off a few days prior to a medical procedure which would have required FMLA leave. The driver was a seasonal worker and 90% of the seasonal workers had been laid off at the time of the plaintiff’s termination. The defendant's only other truck driver was laid off one week after Plaintiff. The fact that this driver was laid off one week after Plaintiff, standing alone, does not create an inference that Defendant laid off Plaintiff to avoid providing Plaintiff with a few days of unpaid FMLA leave. xiv. Borner v. Zale Lipshy University Hospital, 2002 U.S. Dist. Lexis 4787 (N.D. Tex. 2002). Insurance Coverage Verifier failed to establish that her employer’s decision to place her in a position different following an FMLA leave for stomach surgery constituted retaliation. Although plaintiff established a prima facie case by producing evidence that she was ostracized by coworkers, her employer presented a legitimate nondiscriminatory reason for the change in her work location. The employer demonstrated that it needed an employee with the plaintiff’s background to work in the emergency room. xv. Brenlla v. Lasorsa Buick Pontiac. 2002 U.S. Dist. LEXIS 9358 (S.D.N.Y. 2002). Employer failed to demonstrate that there were legitimate business reasons for its refusal to reinstate comptroller who took three months of FMLA covered leave. Defendant claimed its refusal was due to reduction in workforce, but Plaintiff disproved this claim by demonstrating that defendant hired another employee for her position two months later. In addition, defendant’s statement that he made decision to consolidate position during 15-minute meeting with Plaintiff defied logic of sound business practice, and a colleague of Plaintiff testified that defendant considered consolidation before the meeting with Plaintiff. The temporal proximity between the plaintiff's request to be reinstated and the defendants' decision to terminate her employment supported conclusion that plaintiff was terminated because she took FMLA-covered leave. Defendant did not consider anyone for new consolidated position. No assessment of plaintiff’s or colleagues’ qualifications took place. Plaintiff’s past performance was not deficient. Evidence supports conclusion that plaintiff’s leave of absence was the sole determining factor in defendant’s decision to consolidate the positions and to decline to consider her for the new position. xvi. Matthews v. Independence Blue Cross, 2001 U.S. Dist. LEXIS 21868 (E.D. Pa. 2001). Employer articulated a legitimate non- discriminatory reason for terminating Technical Adviser upon her return from FMLA leave for pregnancy and childbirth. The defendant produced evidence that the plaintiff had failed to perform her job objectives for over six months, was insubordinate, chronically tardy and absent, socialized excessively, and left hundreds of unprocessed documents at her desk when she went on leave. Plaintiff did not sustain her burden of producing evidence which would lead a reasonable fact-finder to conclude that the defendant's reason was a pre-text for retaliation. xvii. Spades v. City of Walnut Ridge, 1999 WL 560627 (8th Cir. 1999). Police department did not discriminate against police officer who was fired after taking FMLA leave following suicide attempt. Plaintiff’s employer had legitimate concern that his erratic and violent behavior would place the public at risk and increase its exposure to legal liability for his actions. xviii. Chaffin v. John H. Carter Co., Inc., 1999 WL 414269 (5th Cir. 1999). Computer programmer who was terminated while on FMLA leave did not establish cause of action for retaliatory discharge. Plaintiff was terminated because she drank at a bar while on sick leave and lied about the episode to her employer, and she provided no evidence beyond conclusory assertions that her employer’s stated reason for termination was pretextual. xix. Sepe v. McDonnell Douglas, Inc., 176 F.3d 1113 (8th Cir. 1999). Manufacturer did not discriminate against builder by terminating him while on FMLA leave for birth of child. Plaintiff was terminated for violating collective bargaining agreement by working at second job while on leave without authorization, and not for his exercise of FMLA rights. xx. Bailey v. Amsted Indus., Inc., 1999 WL 222642 (8th Cir. 1999). Factory worker with Graves' disease who was discharged for 72 absences in a four-year period did not suffer discrimination under the FMLA. The great majority of the absences in question were non-medical, and there was no evidence that plaintiff's employer would have acted differently if plaintiff had not taken the FMLA- protected absences. xxi. Hodgens v. General Dynamics Corp., 1998 U.S. App. LEXIS (1st Cir. 1998). Submarine manufacturer had legitimate nondiscriminatory reason to lay off production planner who had taken FMLA leave and suffered long-standing performance problems unrelated to his medical condition. Although a reduction in force is not an open invitation to discharge employees who avail themselves of FMLA rights, an employer is entitled to use any non-discriminatory criterion in deciding which employees to retain. xxii. Hypes v. First Commerce Corp., 134 F.3d 721 (5th Cir. 1998). Bank terminated loan review analyst due to his excessive absences, not because of any request for leave under FMLA, and thus did not violate FMLA. Employee's notes reflected that in five-month period he missed 16 full days and 23 half-days, exclusive of 25 days he missed while on short-term disability leave. xxiii. Morgan v. Hilti, Inc., 108 F.3d 1319 (10th Cir. 1997). Mail clerk who had taken FMLA leave could be terminated for the nondiscriminatory reason of absenteeism where she was warned about her excessive non-FMLA absences, had a history of such absences, and continued to have attendance problems. Further, clerk did not offer any evidence that would suggest the company was not concerned about her attendance, which would have implied that the reason for her termination was merely pretextual. xxiv. Kariotis v. Navistar Int'l Transportation Corp., 131 F.3d 672 (7th Cir. 1997). Transportation company could fire executive assistant who took medical leave following knee surgery but was observed on surveillance videotape performing actions which were inconsistent with her medical restrictions. An employer may terminate an employee based on a good-faith suspicion that FMLA leave is being misused and is not required to prove the truth of its suspicion prior to taking adverse employment action. Thus, although plaintiff claimed that an issue of fact existed regarding whether the surveillance tapes actually proved that she took fraudulent leave, her employer was still entitled to act on them. xxv. Munizza v. State Farm Mutual Automobile Insurance Comp., 1996 U.S. App. LEXIS 32870 (9th Cir. 1996). Insurance company could fire claims adjuster for repeated poor performance and errors, despite the fact that his termination occurred shortly after his FMLA leave for care of his newborn child. Poor performance, which in most instances was corroborated by plaintiff himself, was a nondiscriminatory reason for termination and claims adjuster offered no proof that it was pretextual. xxvi. Deily v. Waste Management of Allentown, 2001 U.S. Dist. LEXIS 8555 (E.D. Pa. 2001) Waste management plant had a non- discriminatory reason for terminating a worker on leave due to schizophrenia and Sweet's Syndrome. The worker did not return to work more than a year after taking his 12-week FMLA leave and he had signed the employer’s FMLA policy document. By signing the document, he acknowledged his understanding that such a failure to return after his leave would be grounds for dismissal. xxvii. Gilliam v. United Parcel Serv., 233 F.3d 969 (7th Cir. 2000). Employee’s termination for not complying with his company’s leave policy following the birth of his child was not protected under the FMLA. The FMLA’s regulations provide that "An employer may ... require an employee to comply with the employer's usual and customary notice and procedure requirements for requesting leave." The fact that the employee was requesting FMLA leave did not abrogate the employer’s usual employee leave policy since the FMLA proscribes only the bare minimum requirements. xxviii. Leung v. SHK Mgmt., Inc., 1999 WL 1240961 (E.D. Pa. 1999). Real estate management company had legitimate non- discriminatory reason to terminate bookkeeper shortly after her return from FMLA leave. Plaintiff was terminated due to documented performance problems which began at least two months before she requested leave, and she presented no evidence that other employees with similar performance records were not fired. xxix. Baltuskonis v. U.S. Airways, Inc., 1999 WL 635746 (E.D. Pa. 1999). Utility manager who was terminated for altering a doctor’s note four days after returning from FMLA leave did not raise an issue of fact as to whether his termination was pretextual. Even though plaintiff contended that it was his wife who altered the note, his employer still reasonably believed that he had fraudulently obtained sick benefits. xxx. Baung v. Entergy Corp., 1999 WL 397403 (E.D. La. 1999). Employer had legitimate nondiscriminatory reason to terminate engineer while on FMLA leave. Plaintiff’s employer had objectively reasonable belief that he violated its conflict of interest policy by accepting temporary employment with contractor while caring for his mother in Korea. Moreover, plaintiff failed to follow order by his supervisor to terminate employment with contractor. xxxi. Summerville v. Esco Co. Ltd. Ptnrshp., 1999 WL 402421 (W.D. Mich. 1999). Chemical plant had legitimate non-discriminatory reason to terminate operator who had 16 unexcused absences in one year exclusive of FMLA-protected leave. Evidence indicated that decision to fire plaintiff would have been made regardless of his protected activity. xxxii. Enright v. CGH Medical Center, 1999 WL 24683 (N.D. Ill. 1999). Hospital did not discriminate against medical coder who was terminated for 10 unplanned absences. Plaintiff's termination resulted from sick days for which no notice was given, and FMLA- protected leave was specifically excluded from employer's calculation of number of absences. xxxiii. Holmes v. Pizza Hut of America, Inc., 1998 WL 564433 (E.D. Pa. 1998). Restaurant had legitimate non-discriminatory reason to terminate manager during FMLA leave when it found that she had frequently stolen money and violated other corporate financial policies. The misconduct for which plaintiff was terminated preceded her request for FMLA leave and thus any inference of retaliatory intent is negated. xxxiv. Clay v. City of Chicago, 1997 U.S. Dist. LEXIS 4481 (N.D. Ill. 1997). Supervisors' decision to replace and demote HR director of city agency during her FMLA leave due to her prior poor performance does not constitute discrimination under the FMLA. Although supervisors' decision took place during FMLA leave of absence, mere timing of the decision to replace plaintiff alone is not adequate for the court to find defendant's explanation a pretext for discriminatory action. xxxv. Dodgens v. The Kent Manufacturing Co., 955 F. Supp. 560 (D. S.C. 1997). Manufacturing company did not violate FMLA when upon the return of a manager from FMLA leave it placed him on notice that he would be fired if he committed a single error and shortly thereafter terminated him for making such an error. Although the company had become aware that the manager’s department worked much better without him during his FMLA leave and had called him twice during the leave to encourage him to accept a demotion, there was no causal connection between the termination and the FMLA leave. The employer’s impressive record of granting FMLA leaves and reinstating employees after such leaves supported the finding of no retaliation for taking FMLA leave. xxxvi. Garcia v. Fullbright & Jaworski, L.L.P., 1996 U.S. Dist. LEXIS 17084 (S.D. Tex. 1996). Employer properly terminated secretary for substandard performance occurring both before and after FMLA leave for surgery on her foot and her eye. The company's articulated nondiscriminatory reason was not pretextual because the secretary’s poor performance was consistent and well documented and the employer had terminated three other employees with poor performance records who had not taken FMLA leaves. xxxvii. Tuberville v. Personal Finance Corp., Bank of Miss., 1996 U.S. Dist. LEXIS 16775 (N.D. Miss. 1996). Finance company could fire manager just prior to her FMLA leave for a hysterectomy on the basis of her branch’s poor performance record. She was treated in the exact same manner as another manager of her branch who had not taken an FMLA leave and the wheels of her termination were put into motion before her request for leave. Although the timing of her leave played a major factor in the employer’s decision to terminate her, it did so only in regards to the timing of the termination, and thus did not constitute a violation of the FMLA. xxxviii. Day v. Excel Corp., 1996 U.S. Dist. LEXIS 8269 (D. Kan. 1996). Termination of operations manager at meat packing company for poor performance and as part of a reduction in force shortly after his return from an FMLA leave for heart surgery is not discrimination under the FMLA. Discriminatory intent cannot be inferred merely from the time an employee is terminated following FMLA leave. If timing alone were sufficient, any employer who granted an employee leave under the FMLA would thereafter have his hands tied regarding any discipline of that employee. Thus an employee who contends he was terminated because he took FMLA leave must show his termination was motivated by discrimination based on that leave. xxxix. Day v. Excel Corp., 1996 U.S. Dist. LEXIS 8269 (D. Kan. 1996). Meat packing company's discharge of operations manager shortly after his return from FMLA leave for heart surgery as part of cut back on departmental costs was not pretextual where departmental economic hardship was well documented and employee had no evidence that motive behind termination was improper. d. Issues of fact exist as to whether employer’s reason for dismissal is pretextual. i. Smith v. Diffee Ford-Lincoln-Mercury, Inc. 298 F.3d 955 (10th Cir. 2002). Warranty clerk established that her employer had terminated her due to her taking FMLA leave by demonstrating that had she not taken FMLA leave, she would have been allowed to continue working indefinitely. Specifically, the employer claimed it had terminated her because she had failed to follow instructions to train junior employees, and as a result, during her leave, claims became backed up. The employee pointed to her long years of service, the employer’s failure to subject her to serious discipline before her FMLA leave, the lack of formal emphasis on the importance of training, the lack of monitoring or reporting of training progress, and the employer’s timing of her termination. She also pointed to her manager’s testimony suggesting that there was no formal deadline for completing the training of other employees. ii. Karnes v. Central Texas Mental Health Mental Retardation Center, 2002 U.S. Dist. Lexis 2951 (N.D. Tex. 2002). Employer did not discriminate against or interfere with the FMLA rights of a training specialist suffering from cancer when it chose to terminate her and cease her health benefits upon the expiration of her FMLA entitlement. Defendant presented sufficient summary judgment evidence to establish that the plaintiff’s FMLA leave was indeed exhausted and that she received notice of her FMLA rights. If an employee is unable to return to work after the expiration of the twelve-week period, the employer is not obligated under the FMLA to restore the employee to his position. The plaintiff produced no evidence that the Defendant's articulated reason for her discharge was not the true reason for the employment decision and that the real reason was the plaintiff’s use of FMLA leave. iii. Stout v. Baxter Healthcare Corporation, 282 F.3d 856 (5th Cir. 2002). Employer did not discriminate against recruiter when it terminated her during her FMLA leave to recover from a broken leg. The employer’s articulated reason for the termination was her consistent failure to recruit as well as other employees. The court’s holding that the plaintiff would have been discharged even had she not taken the leave was sufficient to establish that the defendant’s articulated reason for its adverse employment action was not pretextual. iv. Snelling v. Clarian Health Partners, Inc., 184 F. Supp. 2d 838 (S.D. Ind. 2002). Hospital equipment technician, terminated upon return from FMLA leave, produced sufficient evidence that the employer’s articulated reasons for his termination were pretextual. Although the defendant based its termination on performance issues, the plaintiff was able to produce evidence of disparities in application of the employer’s disciplinary process, suspicious timing in the plaintiff’s termination, remarks by decision makers regarding the plaintiff’s impending medical leave, and credibility issues, all of which call into question the defendant’s proffered justifications. In response to employer’s accusation that the plaintiff had failed to properly document his time worked, the plaintiff produced evidence of similarly situated employees who had performed worse that the plaintiff in this duty, and who had not been disciplined or terminated. In addition, plaintiff produced evidence of statements made by decision-makers expressing discontent in his taking of FMLA leave at a busy time. These statements were made a proximate time to his termination. v. Skrjanc v. Great Lakes Power Service Company, 272 F.3d 309 (6th Cir. 2001). Pump technician, terminated after he gave notice of his intent to take 12 weeks of FMLA leave failed to produce sufficient evidence of pretext. His main evidence, that the company chose to hire a new individual for a similar position rather than transfer him was insufficient. All four employees in his department were terminated, and none of the other three terminated employees were considered for transfer to new positions. The FMLA does not give the employee the right to be considered for transfer if he did not have such a right before he requested leave. Although the plaintiff produced evidence that he could perform the duties of the new position, he did not show that the new position was essentially the same as his old one, under a different name. The plaintiff was also unable to show that the defendant normally gave employees an opportunity to be considered for new jobs within the company when their positions were eliminated. The temporal proximity between voicing his intent to take FMLA leave and his termination was not enough on its own to constitute a showing of pretext. vi. Weston-Smith v. Cooley Dickinson Hospital, Inc., 153 F.Supp.2d 62 (D. Mass. 2001) Hospital Director of Operative Services failed to establish that her employer’s explanation for terminating her while on FMLA-protected maternity leave was pretextual. The employer argued that it had terminated her position as part of a hospital-wide restructuring, which included the laying off of other employees at her responsibility level. Although the hospital created a new position which subsumed most of her former responsibilities and filled the position with a long-term employee, the new position included additional responsibilities and a change in management hierarchy. Thus, the positions were similar, but not so similar to provide evidence that the hospital eliminated her position as a pretext for laying her off. vii. King v. Preferred Technical Group, Inc., 166 F.3d 887 (7th Cir. 1999). Assembler who took FMLA leave for sarcoidosis established issue of fact as to whether her dismissal was pretextual. Although plaintiff did not dispute that she failed to return to work after leave and thus violated company policy, evidence existed that personnel managers had told her that she could not return to work until she could produce unidentified doctor's slips which were missing from her personnel file. Thus, plaintiff’s failure to return to work may have been attributable to her employer’s actions rather than her own. viii. Cline v. Wal-Mart Stores, Inc., 1998 U.S. App. LEXIS 8817 (4th Cir. 1998). Issue of fact existed as to whether department store's discharge of night maintenance worker for clocking in early was pretextual. Another employee who had clocked in early on the same day as plaintiff was also terminated, but was reinstated soon afterward with a clean disciplinary record and subsequently promoted to plaintiff's position. ix. Dumoulin v. Formica and McDonald's of Ravena/Delmar, -- F. Supp. -- (N.D.N.Y. 1997). Swing manager at a McDonald's restaurant created a genuine issue of material fact that the nondiscriminatory reason given for her dismissal, poor performance, was pretextual and that the actual reason for her termination was a requested FMLA leave for pregnancy. Her termination was one day prior to her scheduled pregnancy leave and the company lacked a specific explanation or precipitating incident for the termination. Furthermore, the employer had no written documentation of poor performance for the four months subsequent to the end of the one month probationary period for poor performance in which the manager had been placed five months prior to her termination. x. Petsche v. Home Federal Savings Bank, 952 F. Supp. 536 (N.D. Ohio 1997). Bank employee created a genuine issue of material fact that her employer's explanation that she was terminated for not meeting performance expectations and for remaining inaccessible during her short-term leave was pretextual. She introduced evidence that her supervisor directed her to perform work other than that upon which her performance expectations were based, that her sales numbers were in line with other employees' during the months she worked full time, that she had no notice that her performance was substandard, that her supervisor had never attempted to contact her while she was on leave, and that she was discharged immediately after informing her manager that she would take additional FMLA leave. xi. Marks v. The School District of Kansas City, Mo., 941 F. Supp. 886 (W.D. Mo. 1996). School superintendent created a genuine issue of material fact that his termination was because of his FMLA leave for depression and not for mischaracterization of the nature or severity of his illness to his School Board. Specifically he claimed that only after he took his leave did the School Board begin investigating grounds for his termination and that the School Board engaged in conduct designed to prevent him from returning to his job such as publicizing his condition and making false statements to the press in order to provoke public support for his termination. e. Employer’s articulated reason for adverse action is held not to be pretextual. i. Gventer v. Theraphysics Partners of W. Pa., Inc. 2002 U.S. App. LEXIS 14800 (3rd Cir. 2002). Physiotherapist assistant, terminated while on FMLA leave, failed to prove that her employer’s claim that it had terminated her due to economic reasons were pretextual. The employer established that his business had suffered a downturn and that plaintiff had not been replaced. Moreover, the employer the employer replaced all of the six physiotherapist assistant positions with licensed physiotherapists, who were permitted a broader range of treatment, required less supervision, and had comparable salaries. ii. Hale v. Mann, 219 F.3d 61 (2nd Cir. 2000). NY Office of Children and Family Services did not violate the FMLA when it terminated a Youth Facility Director while he was on FMLA leave for job- related stress because it offered valid, non-discriminatory reasons for his termination. The court held that the employer did not violate the FMLA to begin with because the employee could not show the employer’s proffered reasons for termination were mere pretexts. iii. Rice v. Sunrise Express, Inc., 5 Wage & Hour Cas. 2d [BNA] 1770 (7th Cir. 2000). Payroll billing clerk for a trucking company who was laid off while on FMLA leave for a toe injury that required hospitalization was unable to prove pretext for her termination. Specifically, while the employee claimed that she was discharged because she took FMLA leave, the employer claimed that she was discharged pursuant to a reduction in force. Therefore the employer only had the burden of producing evidence to support its assertion. The employee bears the burden of persuading the trier of fact that the employer's evidence is insufficient and that the employee would not have been discharged if she had not taken FMLA leave. Although the employee claimed she was fired for taking FMLA leave, a reasonable jury could believe the employer’s stated reasons, such as that she was a lazy worker who spent a great deal of her work time playing video games. iv. Hauge v. Equistar Chemical Co., 2002 U.S. Dist. LEXIS 15822 (N.D. Ill. 2002). Maintenance technician failed to present sufficient evidence that his employer’s terminating him on the basis that he had not given sufficient notice to qualify for FMLA leave was pretextual. The employer terminated the employee because he failed to inform team members about the status of the emergency work order and to retain a co-worker to work on the project while he was at the doctor's office. In addition, employee’s claim that he was fired as a scapegoat and that his manager terminated him to save his own job were irrelevant. v. Raymond v. Albertson's, Inc., 1999 WL 181628 (D. Nev. 1999). Production worker did not raise an issue of fact as to whether his termination for excessive absenteeism and lying about his reasons for being absent was a pretext for discrimination due to his prior FMLA-protected leave for drug treatment. Plaintiff did not present any evidence that the reason proffered by his employer was false or that other employees who had committed similar misconduct were treated differently. 2. Interference with FMLA Rights i. Hanson v. Sports Auth., 256 F. Supp. 2d 927 (W.D. Wis. 2003). Employee who was denied reinstatement to her former position as sales manager and terminated after her short-term disability benefits ended failed to provide any evidence that her employer interfered with her rights under the FMLA. The plaintiff alleged that the store manager, who the plaintiff knew was not a benefits specialist, failed to tell her about the availability of intermittent leave under the FMLA. However, the plaintiff did not allege that the store manager prevented her from calling corporate headquarters for information from benefits specialists, nor did she allege that the benefits specialists withheld the information she was seeking or gave her inaccurate information. Most importantly, she did not deny that she made the decision to resign before she even met with the store manager or called the defendant’s headquarters. Moreover, she did not explain why knowledge about intermittent leave would have changed her decision to resign. ii. Panto v. Palmer Dialysis Ctr./Total Renal Care, 2003 U.S. Dist. LEXIS 5663 (E. D. Pa. 2003). A dialysis technician with lupus and rheumatoid arthritis who was fired for excessive absences failed to establish an interference claim under the FMLA because she was not eligible for FMLA leave at the time her employment was terminated. It was undisputed that the plaintiff had already used 12 weeks of FMLA leave. However, the plaintiff argued that the employer was estopped from asserting that her leave was confined to 12 weeks because its employee policy allowed for up to six months’ medical leave under the FMLA. Although the employer’s policy provided a more generous benefit, it did not convert this leave to an entitlement under the FMLA. While the employer’s policy granted an additional three months’ qualified leave of absence, the FMLA does not create a federal cause of action to enforce the voluntary employer policies of providing benefits that exceed those required by the FMLA. iii. Parker v. Hahnemann Univ. Hosp., 234 F. Supp. 2d 478 (D.N.J. 2002). A nurse whose position of bed chief was eliminated while she was on an approved medical leave raised an issue of material fact of whether the hospital had denied her rights under the FMLA. While the Circuits have taken different approaches in analyzing the burden of proof issue in entitlement claims under the FMLA, the court sided with the Tenth Circuit, requiring the plaintiff to bear the burden of proving that she was entitled to reinstatement and was denied it, after which the burden is on the employer to mitigate its liability by proving that she would have lost her job whether or not she took leave. In this case, questions of fact existed as to whether the position would have been eliminated if the plaintiff had stayed on the job, and whether or not the plaintiff was offered placement in an equivalent job. iv. Alifano v. Merck & Co. Inc., 264 F.3d 1317 (E.D. Pa. 2001). Security investigator with fibromyalgia and chronic fatigue syndrome, who was terminated after a medical leave due to her inability to perform essential functions of the position, failed to establish a prima facie case of discrimination and wrongful termination under the FMLA. Plaintiff availed herself of her leave rights and upon returning to work, informed her employer that she was unable to travel or work more than eight hours a day. Since she was unable to fulfill an essential function of her job, that is, traveling throughout the northeastern United States, and was thus not qualified for her position, she did not suffer an adverse employment action under the FMLA v. Alifano v. Merck & Co. Inc., 264 F.3d 1317 (E.D. Pa. 2001). Security investigator who took a medical leave of absence due to fibromyalgia and chronic fatigue syndrome could not bring a claim regarding her employers’ interference with her FMLA rights because she did not successfully allege any forfeiture of her FMLA rights. The plaintiff, who was terminated after a lengthy leave period when she could not find a job within the company that met her medical restrictions, did not allege that the defendants denied her entitlement to leave nor did she allege that defendants failed to restore her to her previous position. Since the Plaintiff failed to allege any FMLA violations, her claim regarding defendants' interference with her FMLA rights did not state a claim upon which relief can be granted. vi. Wascura v. City of South Miami, 2001 U.S. App. LEXIS 15935 (Court Appeals for 11th Cir. 2001). City did not interfere with clerk’s FMLA rights by terminating her after her disclosure that she would need to take leave in the future to care for her HIV- positive son. To establish an FMLA interference claim, a plaintiff must establish three things: (1) he availed himself of a protected right under the FMLA; (2) he suffered an adverse employment decision; and (3) there is a causal connection between the protected activity and the adverse employment decision. Although the plaintiff successfully established that she suffered an adverse employment action (termination) and that she raised a genuine issue of material fact with regard to the second element, she failed to establish a causal connection between the two. The Mayor’s statement that Wascura should use her HIV-positive child’s need for care as an excuse for her termination was not sufficient evidence to establish causation. In addition, the three and one-half month span between notification and termination was also not sufficient for a reasonable jury to find causation. vii. Barry v. Wing Memorial Hospital, 142 F. Supp. 2d 161 (D. Mass. 2001). A letter informing a Director of Public Relations on FMLA leave for depression that her job was being replaced with a potentially inferior position did not constitute a violation of the FLMA regardless of whether it contributed to her further deterioration. The FMLA does not address the cause of an employee's injury. Instead, the FMLA entitles an employee to take a medical leave of absence and addresses an employee's rights upon return from said leave. As a result, the fact that the letter may have caused plaintiff's relapse cannot help her FMLA claim. viii. Saladin v. Packerware Corp., a/k/a Berry Plastics Corp., p/k/a Packer Plastics, Inc., 2001 U.S. Dist. LEXIS 5922 (D. Kan. 2001) Maintenance worker failed to create an issue of fact that employer disciplining for taking FMLA leave to care for his wife constituted an interference with his FMLA rights. The defendant conceded that it had disciplined the plaintiff for absences covered by the FMLA. However, the employer never refused the plaintiff time off, eventually corrected the attendance mistake, and voided the disciplinary write-up. Plaintiff was unable to provide any authority demonstrating how such inconveniences as filling out paperwork to establish FMLA coverage amount to an actionable FMLA interference on the part of defendant. ix. Goodwin-Hallmark v. Menninger Clinic, Inc., 1999 WL 1144794 (D. Kan. 1999). Issue of fact existed as to whether hospital interfered with FMLA rights of nurse manager with cytomegalovirus, a condition similar to mononucleosis. Plaintiff’s employer did not advise employees of their FMLA rights, and it failed to either grant leave or request further certification after she submitted physician’s note detailing nature and severity of her condition. x. Renaud v. Wyoming Dept. of Family Servs., 203 F.3d 723 (10th Cir. 2000). School superintendent who exhibited drunkenness at his workplace was not shielded from termination simply because shortly after his last appearance at work in that state he went on FMLA leave to enter an alcohol treatment program. An employee who requests FMLA leave has no greater protection against his employment being terminated for reasons not related to his or her FMLA request than he did before submitting the request. Because employee’s actions were in violation of the employer’s substance abuse policies, he was fired for non-discriminatory reasons, and a reasonable jury had sufficient evidence to find that his employer did not interfere with his FMLA rights by doing so. xi. Meyer v. Imperial Trading Co., 2001 U.S. Dist. LEXIS 3925 (E.D. La. 2001). Employee who was fired one day after requesting FMLA leave for respiratory difficulties was an eligible employee, even though she’d not yet worked a full year as of the date she made her request because her requested leave was set to commence after she’d met the one-year benchmark. Therefore, the employer interfered with the employee’s FMLA rights when it failed to inform her of her eligibility date. xii. Voorhees v. Time Warner Cable National Division, 1999 WL 673062 (E.D. Pa. 1999). Issue of fact existed as to whether cable television company violated FMLA by advertising for business manager position while customer service manager was on leave. A reasonable jury could find that employer’s conduct in advertising for an employee to fill many of plaintiff’s duties could have been designed to discourage plaintiff or others from taking FMLA leave. Thus, an issue of fact exists as to whether employer interfered with plaintiff’s FMLA rights. xiii. Barnett v. Revere Smelting & Refining Corp., 1999 WL 965429 (S.D.N.Y. 1999). Refinery operator with heart condition who was fired for excessive absenteeism could state a cause of action under the FMLA even though he had nine unexcused absences not protected by the statute. A termination based in part on FMLA- protected absences, even in combination with other absences, may constitute a violation of FMLA rights. xiv. Neal v. Mulate’s of New Orleans, 1999 WL 622902 (E.D. La. 1999). Bartender presented issue of fact as to whether restaurant acted pretextually in terminating him for failing to report to work without contacting his supervisor. Plaintiff was terminated soon after taking FMLA leave for on-the-job injury, and restaurant manager’s statement that "Mulate's was not going to pay for Neal's surgery and his request for leave was not going to happen" raised issue of fact as to whether corporate decision-makers bore animus against him for exercising his right to FMLA leave. xv. Henthorn v. Olsten Corp., 1999 WL 102764 (N.D. Ill. 1999). Issue of fact existed as to whether employer interfered with branch manager's FMLA rights by not providing her with its standard leave request forms when she requested sick leave. Since plaintiff might not have known how much medical documentation was required of her without the forms, issue of fact for jury existed as to whether employer may have given her the information she needed in order to supply adequate medical certification. xvi. Gleklen v. Democratic Congressional Campaign Committee, 1999 WL 149979 (D.D.C. 1999). Campaign committee did not interfere with clerical worker's FMLA rights by terminating her while pregnant. Plaintiff had not requested FMLA leave at the time she was terminated, and there was no evidence that she was fired as a pre-emptive measure to prevent her from taking FMLA leave after her child was born, especially since her employer had never denied maternity leave to any other employee. xvii. Szabo v. Trustees of Boston University, 1998 U.S. Dist. LEXIS 4104 (D. Mass. 1998). Histology technician could not sue university administrators for referring her to incorrect locations to obtain medical leave forms. At most, plaintiff's employers engaged in administrative bungling, and their conduct does not evidence an intent to frustrate her rights under the FMLA by making it difficult for her to obtain medical leave. xviii. Beal v. Rubbermaid Commercial Products, Inc., 972 F. Supp. 1216 (S.D. Iowa 1997). Factory worker who took leave to care for husband and son with asthma could not sue under FMLA merely because she was assessed two half-points under employer's no fault attendance policy. Plaintiff was not disciplined or terminated as a result of having been issued these points, and issuance of points by itself is not an adverse employment action. xix. Fry v. First Fidelity Bank Corporation, 1996 WL 36910 (E.D. Pa. 1996). Bank teller who was reinstated to a lower position after taking 16 weeks of maternity leave established a genuine issue of material fact that her employer interfered with her FMLA rights by showing that the employer failed to adequately notify her in its employee handbook that although it provides 16 weeks of maternity leave, it considers the first 12 to be FMLA leave, and thus the employee's FMLA reinstatement rights expire at the end of 12 weeks. B. Employees cannot waive their rights under the FMLA, nor can they trade these rights for other benefits. 29 C.F.R. § 825.220(d). (But see XVIII.E. below outlining cases upholding contracts requiring the submission of FMLA claims to arbitration.) i. Sanders v. May Dep’t Stores Co., 315 F.3d 940 (8th Cir. 2003). Financial analyst failed to demonstrate that department stores owner coerced him to waive his FMLA rights in a “trade-off” for personal leave under its policy. However, it was determined that the plaintiff had opted not to pursue FMLA leave after learning about the required medical certification. As a result, he “chose” personal leave only by forfeit, and the facts did not support his claims that the employer required him to trade away his FMLA rights. ii. Dierlam v. Wesley Jessen Corp., 222 F. Supp. 2d 1052 (N.D.Ill. 2002). An employee was not barred from bringing a claim against her former employer even though she signed a separation agreement that specifically waived her right to sue under the FMLA. The separation agreement provision was found to be unenforceable, as a DOL regulation explicitly states that employees cannot waive their rights under the FMLA. iii. Bluitt v. Eval Co. of America, Inc., 1998 U.S. Dist. LEXIS 6695 (S.D. Tex. 1998). Laboratory technician was not precluded from bringing FMLA claim by release of prior lawsuit against employer in which she agreed to forego all claims relating to her employment. Department of Labor regulations indicate that employees cannot waive, nor can employers induce employees to waive, statutory rights under the FMLA. C. Retaliation Defined 1. An employer cannot retaliate against an employee who opposes actions by the employer that are, or that the employee reasonably believes to be, in violation of the FMLA. Specifically, an employer is prohibited from discharging or otherwise discriminating against employees for opposing any practice made unlawful by the FMLA, for filing complaints of violations of the Act, or for participating in proceedings related to the rights protected by the FMLA. 29 U.S.C. § 2615; 29 C.F.R. § 825.220. 2. Protected activity. i. Collins v. Merck-Medco RX Services, 253 F.3d 708 (N.D. Texas 2001). Customer service representative suffering from uterus tumors could not make a prima facie case for retaliation when she could not demonstrate she had engaged in a protected activity. The plaintiff claimed she was fired not for requesting leave, but for taking the leave itself. Because she was never qualified for FMLA leave the employer’s decision to terminate her did not constitute retaliation and did not violate the FMLA. In addition, because she failed to provide evidence of lost wages and medical bills, she could not support her claim of an adverse employment action and also failed that prong of making a claim of retaliation. ii. Coleman v. Prudential Relocation, Inc., 975 F. Supp. 234 (W.D.N.Y. 1997). Employee who had been employed just over one year at the time she started FMLA leave could not claim retaliation under FMLA for termination decision made prior to her employment anniversary. Plaintiff was not an eligible employee under FMLA at the time the termination decision was made, and thus could not have engaged in protected activity. 3. Adverse action. i. Pownall v. City of Perrysburg, 2003 U.S. App. LEXIS 6889 (6th Cir. 2003). City tax clerk who resigned voluntarily failed to establish a FMLA claim absent an adverse employment decision. The plaintiff’s breast implants had ruptured and needed to be surgically removed. However, the plaintiff resigned her position after her supervisor inquired as to the reasons she wanted time off from work for surgery and asked whether the surgery could be postponed. Her attempts to rescind her resignation by claiming she was pressured, harassed, and humiliated into saying she quit were denied under state law, and the employer was entitled to believe that she had effectually resigned. Accordingly, she could not claim that the City violated her rights under the FMLA because she did not suffer an adverse employment decision. ii. Potenza v. City of New York Department of Transportation, 259 F.3d 700 (S.D.N.Y. 2001). A port engineer who had injured his knee and back in on-the-job injuries could not make a prima facie case of retaliation under the FMLA because he had been back at work for two months when he was removed from his position. Furthermore, a co-worker who had not taken medical leave was removed from his position at the same time. These facts suggested that the plaintiff was not removed because he took a medical leave, but rather because of the administrative decision to transfer his supervisory responsibilities. The plaintiff was asking for greater job protection than he would have received had he not taken medical leave. iii. Darby v. Bratch et al., 287 F.3d 673 (8th Cir. 2002). Police dispatcher suffered an adverse employment action when she received an Incident Report while she was on FMLA leave for Grave’s Disease which specifically listed “unpaid leave” as a problem. When the plaintiff exercised rights protected by the Act (taking unpaid leave under the FMLA) , she was disciplined by receiving a written reprimand and was recommended for termination. These actions were sufficiently adverse to sustain a prima facie case for FMLA retaliation. In addition, because the Incident Report regarding the plaintiff’s use of unpaid leave was still pending, department policies made it impossible for the plaintiff to be rehired. This too was sufficiently adverse to the plaintiff’s employment to sustain a claim of retaliation under the FMLA. iv. O'Grady v. Catholic Health Partners Services, 2002 U.S. Dist. LEXIS 2182 (N.D. Ill. 2002). Hospital risk manager created an issue of fact as to whether her employer retaliated against her for taking FMLA leave for a variety of health reasons. An inference of retaliation can be drawn from the fact that the employer repeatedly told the plaintiff that she would be replaced if she took full-time leave, and, in fact, replaced her with a permanent worker when she did take full-time leave. The employer’s claims that they offered the plaintiff her job back and that she was only taken off payroll after the expiration of her FMLA leave were not legitimate and genuine issue of material fact remains as to whether it retaliated against the plaintiff. v. Connel v. Hallmark Cards, Inc., 2002 U.S. Dist. Lexis 1945 (D. Kan. 2002). Stationary company’s decision to stop short-term disability payments to an employee on FMLA leave in order to force her to return to work and its failure to demand a fitness-for- duty report, as required by its own policy, was sufficient to raise an inference of retaliation. Although the defendant's decision to stop plaintiff's STD pay was lawful, it could be viewed by a fact finder as evidence that defendant intended to interfere with plaintiff's exercise of her FMLA rights. Furthermore, because the employer chose not to follow its own policy in allowing plaintiff to return to work without a release, a finder of fact could infer that defendant disregarded its policy so that plaintiff would have to return before her FMLA leave was over if she wanted to be paid. Although each of the defendant’s actions standing alone were not enough to establish pretext, in evaluating the totality of the circumstances the plaintiff produced enough evidence to survive summary judgment. vi. Darby v. Bratch et al., 287 F.3d 673 (8th Cir. 2002). A supervisor’s statement to a police dispatcher upon her return from FMLA leave for Grave’s Disease that she would not be promoted because of her use of sick leave constituted an adverse employment action under the FMLA. The plaintiff had missed 60 days pursuant to her FMLA leave request during the year in question. Although she was reinstated to the same position as she had before taking FMLA leave, it is apparent that she was reinstated with a definite loss of a benefit, namely the ability to be promoted. An employer can discipline an employee for taking sick leave when she is not sick, but there was no evidence in this record to that effect. In addition, an employee could be disciplined for taking unpaid leave not covered by the FMLA, but, the plaintiff had only five such days during that year and the employer did not argue that its discipline was based upon these five days. vii. Smith v. Bellsouth Telecommunications, Inc., 273 F.3d 1303 (11th Cir. 2001) Applicant for rehire could base retaliation suit on his employer’s rejecting him in part because of his use of FMLA leave during his prior employment, although he was not an employee at the time of the adverse action. The plaintiff, a former service representative with the defendant, alleged that his employer retaliated against him where his frequent use of FMLA-protected leave was among the reasons cited by management in their decision not to rehire. He had standing to bring suit because the provision of the FMLA that provides a right of action to “employees” is ambiguous and the DOL regulation interpreting the FMLA to protect former employees from discrimination in hiring decisions is reasonable. If former employees knew they would have no remedy if their employers retaliated against them for their past use of FMLA leave, it would tend to chill employees' willingness to exercise their protected leave rights and would work against the purpose of the FMLA. viii. Switzer v. Rivera, 2001 U.S. Dist. LEXIS 20371 (D. Nev. 2001). Fry cook created a material issue of fact when she alleged that she was discouraged from signing a bid sheet for a more senior position by a supervisor due to her use of FMLA leave. She also produced evidence that the defendant failed to report the FMLA leave-hours properly to its payroll department, causing her medical insurance to lapse on several occasions. ix. Tremblay v. Liberty Enterprises, Inc., 263 F.3d 355 (D. Minn. 2001) A marketing graphics manager who alleged that she suffered retaliation due to her use of FMLA leave could not bring forth an FMLA claim because she did not show that she suffered an adverse employment action. After a supervisor noticed a trembling condition in the plaintiff’s wrist, he suggested she fill out a medical certification form, and avail herself of her rights under the FMLA. The plaintiff became concerned that she was being forced to take FMLA leave, and relations between the employee and her supervisor soured over this issue. The plaintiff eventually took FMLA leave for anxiety and depression, which the employer extended beyond the required 12 weeks, and the plaintiff resigned at the culmination of her leave. Although the plaintiff brought forth evidence that the employer had threatened to terminate her if she did not submit the FMLA form, she was not terminated, nor did the reprimand affect her benefits, duties, or compensation. The plaintiff attempted to sidestep the issue of a single adverse employment action by claiming that she was constructively discharged as a result of the company’s actions. An employee has an obligation not to assume the worst and not to jump to conclusions too quickly. An employee who quits without giving her employer a reasonable chance to work out a problem has not been constructively discharged. x. Hunt v. Rapides Healthcare System, 277 F.3d 757 (5th Cir. 2001) Medical Center’s offer of a night shift position to a nurse returning from FMLA leave as opposed to her former day shift position did not constitute an adverse employment action and thus, did not violate the anti-retaliation provisions of the FMLA. The Medical Center's offer of the full-time night shift CCU position was not a demotion in duties or title; was not a job termination; did not affect compensation; and did not impose discipline. Although the plaintiff argued that under the DOL regulations, the FMLA may cover a broader range of employment actions than the anti- retaliation provision in Title VII, no such action occurred in this case. The DOL regulations do not make every unpopular employment decision following FMLA leave a retaliatory adverse employment action. xi. Graham v. State Farm Mutual Ins. Co., 1999 WL 979618 (11th Cir. 1999). Insurance company did not retaliate against clerical worker who took FMLA leave by sending her subsequent memorandum calling attention to her high level of unauthorized absences. Employer’s memorandum was factually correct and was merely an expression of concern over plaintiff’s high level of absenteeism, and thus did not constitute an undeserved negative evaluation or any other type of negative job action. xii. Holmes v. Boeing Co., 1999 WL 9760 (10th Cir. 1999). Aerospace company did not retaliate against technician by dismissing him for absenteeism and violation of attendance reporting policy soon after his return from FMLA-protected leave. Proximity in time of adverse employment action to protected activity does not in itself give rise to inference of pretext where employer has articulated a legitimate non-discriminatory reason for the action. xiii. Austin v. Haaker, 1999 WL 1144792 (D. Kan. 1999). Issue of fact existed as to whether employer retaliated against pallet sorter by disciplining him twice for the same absence and issuing a “last chance agreement” forbidding him from taking any medical leave for one year. Both actions were taken in close proximity to plaintiff’s FMLA leave and were not justified by any violation of attendance policy on plaintiff’s part, and last chance agreement specifically implied that FMLA leave contributed to plaintiff’s “unacceptable” absenteeism. xiv. Summerville v. Esco Co. Ltd. Ptnrshp., 1999 WL 402421 (W.D. Mich. 1999). Chemical operator established prima facie case of retaliation when he presented evidence showing that his employer transferred him and assigned him to menial duties while he was taking FMLA-protected leave. Assignment to undesirable job duties and involuntary transfer constituted negative employment action, even though plaintiff had to perform some menial duties on an infrequent basis in his former position. xv. Noyer v. Viacom, Inc., 22 F. Supp. 2d 301 (S.D.N.Y. 1998). Entertainment company did not retaliate against manager who took FMLA leave by subsequently failing to keep her fully informed of developments related to a project to which she was assigned and hiring an outside consultant without her approval. These alleged instances of retaliation represent no more than de minimis changes in the terms and conditions of employment, especially since plaintiff's pay, benefits, title and authority remained unchanged 4. Causal connection must exist between protected activity and adverse action. i. D’Amico v. Compass Group, USA, Inc., 52 Fed. Appx. 524 (1st Cir. 2002). Cafeteria services company did not retaliate against employee who exceeded his allowed leave by two days. The employee failed to proffer sufficient evidence that his overstaying the one-week leave prescribed by his doctor was causally related to any subsequent adverse action taken by his employer. The two days was a very short period of time and did not result in any loss of pay or provoke any critical comment. Moreover, the two interim adverse actions occurred one year after the medical leave and did not make any reference, explicit or implied, to employee’s leave taking. Lastly, the employer presented evidence that the regional vice president was unremitting in voicing his extreme displeasure with the fact that the employee went over his head and sought help from the CEO. As a result, the dominance of this obvious motivation, which occurred one month prior to his termination, together with all the other evidence, left no room for a reasonable jury to find that a remote and minimal medical leave dispute played any role in his termination. ii. Carpenter v. Northwest Airlines, Inc., 47 Fed. Appx. 424 (8th Cir. 2002). Airline did not retaliate against a reservation sales agent when it terminated her one day after her return from FMLA leave. The airline demonstrated that its decision was due to poor job performance. Specifically, the airline demonstrated that the employee had made numerous significant errors in her work and failed to correct them before her leave. As required by the FMLA, the airline had reinstated the sales agent to the same position she held prior to her leave. However, the airline was not obligated to allow her to remain in a position she could not perform. iii. Carter v. Enterprise Rent-A-Car Co. 2002 WL 1759821 (N.D. Ill., 2002) Account Executive established a causal connection between her request for two months of FMLA leave to care for a sick child and her termination on the basis that she had taken a gas card home. Six days after submitting her request for leave, her manager reported her for taking a gas card home, although no other employees had been reported for such actions. In addition, the plaintiff’s manager, who was aware of the request for FMLA leave, had spoken to the vice president regarding the manager's belief that the plaintiff had taken the card only after the FMLA leave was requested. iv. Chandler v. Specialty Tires Of America (Tennessee), Inc., 283 F.3d 818 (6th Cir. 2002). Jury was reasonable in finding that supervisor’s motive for terminating a personnel assistant was due to her taking of FMLA leave, and not his proffered reason that her suicide attempt demonstrated a lack of responsibility. The FMLA protects an employee from adverse action as a result of his taking leave for a serious medical condition. It does not protect an employee from adverse action motivated by the underlying medical condition itself. The jury was reasonable in finding causation between the plaintiff’s taking of FMLA leave and her termination, and that the underlying reason for her termination was in retaliation for taking FMLA leave and not for the suicide attempt itself. v. Wascura v. City of South Miami, 257 F.3d 1238 (11th Cir. 2001). City clerk failed to establish a causal connection between her giving notice of a potential need for FMLA leave in order to care for her AIDS-stricken son, and her termination three and a half months later. The city’s proffered reason for termination was a lack of trust based on her distributing misinformation at an important meeting. Aside from the temporal proximity, plaintiff introduced virtually no evidence of a causal connection. In light of the other evidence in the record, such as her the three and one- half month temporal proximity is insufficient to create a jury issue on causation. vi. Gilliam v. United Parcel Serv., 233 F.3d 969 (7th Cir. 2000). Employee’s termination for not complying with his company’s leave policy following the birth of his child was not protected under the FMLA. The FMLA’s regulations provide that "An employer may ... require an employee to comply with the employer's usual and customary notice and procedure requirements for requesting leave." The fact that the employee was requesting FMLA leave did not abrogate the employer’s usual employee leave policy since the FMLA proscribes only the bare minimum requirements. vii. Aubuchon v. Knauf Fiberglass, GMBH, 240 F. Supp. 2d 859 (S.D. Ind. 2003). Laborer failed to demonstrate that a fiberglass manufacturer retaliated against him by firing him after he took FMLA leave. The company was justified in firing him because he did not provide advance notice for foreseeable leave, or inform the employer that he required leave for exigent circumstances. Instead, the employer discharged the plaintiff for accruing too many absences. The plaintiff also presented insufficient evidence to raise an inference that the reason he accrued too many absences was attributable to the employer’s retaliatory animus. viii. Aubuchon v. Knauf Fiberglass, GMBH, 240 F. Supp. 2d 859 (S.D. Ind. 2003). Laborer failed to establish that his second termination, after being reinstated through a union grievance hearing, was in retaliation for filing a grievance over his initial discharge and having filed a FMLA lawsuit. The employer sustained its burden of presenting a legitimate, non-retaliatory reason for taking its adverse employment action by presenting evidence that it fired the plaintiff because he omitted material facts on his employment application. The plaintiff admitted that the employer had followed its procedures in discharging him and did not deny that it would have terminated him had it known of the omissions. Although the plaintiff argued that he had no intent to deceive the employer, the employer’s policy with respect to applications had nothing to do with the applicant’s subjective intent. As a result, the plaintiff failed to establish a causal connection between the protected activity and his termination. ix. Smith v. Alexander & Alexander, Inc., 25 F. Supp. 2d 404 (S.D.N.Y. 1998). Issue of fact existed as to whether employee who took six weeks' FMLA leave to adopt a disabled child and was subsequently terminated was retaliated against for exercise of FMLA rights. CEO's clear threat to retaliate against employee for "choosing" to adopt a disabled child and thus being obliged to take a six-week leave while "on [his] watch," when coupled with his direct involvement in both the immediate diminishment of her duties and her subsequent termination, raised inference of retaliatory motive. x. Agee v. Northwest Airlines, Inc., 151 F.Supp.2d 890 (E.D. Mich. 2001). Flight attendant who took frequent FMLA leave on the basis of migraine headaches, was unable to establish a causal link between his use of FMLA leave and his termination. Employer terminated plaintiff on the basis of lying about his migraine condition and not cooperating with an investigation into the misuse of his sick leave. xi. Marrero v. Camden County Board of Social Services, 2001 U.S. Dist. LEXIS 15776 (D. N.J. 2001). Unit clerk raised a triable issue of fact that she was terminated in retaliation for taking FMLA- protected leave. The employee was fired for excessive absenteeism while on leave for emotional distress due to her difficulties in abiding by the agency’s dress code. As the plaintiff complied with the notice and certification requirements of the act, these absences could not be considered as a basis for the plaintiff’s dismissal. xii. Nusbaum v. CB Richard Ellis, Inc., 2001 U.S. Dist. LEXIS 17912 (D. N.J. 2001). Secretary at real estate office who was terminated while on medical leave for back surgery made a prima facie case of retaliation when she established a causal connection between her attempt to take advantage of her rights pursuant to the FMLA and her subsequent termination. Although the plaintiff had used the 12 weeks of FMLA leave, she may have been entitled to the company’s own 39 week extended leave policy and should have been made aware of this policy. xiii. Agee v. Northwest Airlines, Inc., 151 F.Supp.2d 890 (E.D. Mich. 2001). Flight attendant who took frequent FMLA leave on the basis of migraine headaches, was unable to establish a causal link between his use of FMLA leave and his termination. Employer terminated plaintiff on the basis of lying about his migraine condition and not cooperating with an investigation into the misuse of his sick leave. xiv. Connel v. Hallmark Cards, Inc., 2002 U.S. Dist. Lexis 1945 (D. Kan. 2002). Stationary company employee failed to establish an issue of fact that defendant acted with a retaliatory motive when employer made inquiries into her recreational activities while on FMLA leave. Plaintiff failed to produce evidence that the defendant investigated her merely because she took FMLA leave. To the contrary, defendant reasonably suspected that plaintiff intended to misuse her FMLA leave and, accordingly, conducted an investigation into the matter. The investigation, which included photographing the plaintiff at a 4-H Fair, does not raise a question of fact as to pretext. Plaintiff's argument that she was trapped into some denial or inconsistency at a meeting with a supervisor was similarly unavailing. Whether the supervisor withheld information about the fact that defendant had a photograph of plaintiff at the 4- H Fair is irrelevant. It was plaintiff's decision to be untruthful regarding the evenings she attended the Fair, and the supervisor’s questioning of plaintiff cannot be viewed as retaliatory. xv. Haley v. Wal-Mart Stores, Inc., 2001 U.S. Dist. LEXIS 18839 (D. Mass. 2001) Snack bar manager, terminated for giving food away to a repairman, could not establish a causal connection between her request for FMLA leave and her termination. The investigation that culminated in her termination was originally aimed at a different snack bar employee. Nothing in the record suggests that the investigation was directed at her or connected in any way to her decision to take FMLA leave. Nor is there any evidence that the supervisor who had approved her leave played any role in instigating her termination. xvi. Maxwell v. GTE Wireless Serv. Corp., 121 F. Supp. 2d 649 (N.D. Ohio 2000). Account executive who took leave to recover from depression established a connection between his termination and his request for a second leave. The close temporal relationship between his request and his termination was sufficient to establish the "causal connection" prong of plaintiff's prima facie retaliation case. A reasonable jury could find that his employer's articulated non-discriminatory reason for firing him, such as his poor performance and his failure to meet sales quotas, were pretexts under a mixed-motive analysis. xvii. Gardenour v. Powerquest Boats, Inc., 2001 U.S. Dist. LEXIS 5870 (W.D. Mich. 2001) Layoff of a manufacturing employee during FMLA due to migraine headaches on the basis that she had more unexcused absences than anyone else in her department did not constitute a violation of the FMLA. Employee was unable to establish a causal connection between her termination and her exercise of FMLA rights by making a simple assertion of the fact. In addition, the employee could not offer any evidence that the employer’s proffered reasons for its layoff decision, specifically that it was experiencing a work slowdown and that plaintiff had worst absentee record amongst her coworkers, were pretexts for retaliatory termination. xviii. Kenyon v. Western Extrusions Corp., 2000 WL 12902 (N.D. Tex. 2000). Corporation did not retaliate against executive secretary with irritable bowel syndrome when it advised her of termination shortly after she requested medical leave. Since internal documents showed that the decision to terminate plaintiff was made several days prior to her request for leave, the fact that she was not notified of that decision until after her request does not create an inference of retaliatory intent. xix. Sommers v. Household Int’l, Inc., 1999 WL 1285858 (N.D. Ill. 1999). Employer did not retaliate against collections representative when it terminated him for performance problems shortly after his return from medical leave. Plaintiff presented no evidence other than timing that his medical leave influenced his termination, and temporal proximity alone is not sufficient to raise an issue of fact as to retaliatory intent. Moreover, the person hired to replace plaintiff had also taken recent medical leave, thus eliminating any inference of animus toward employees who exercise FMLA rights. xx. Bond v. Sterling, Inc., 1999 WL 1124783 (N.D.N.Y. 1999). Employer did not retaliate against manager when it terminated her for failing to attend mandatory annual managers’ meeting shortly after returning from FMLA leave. Plaintiff presented no evidence that other managers had failed to attend the meeting and not been terminated. xxi. Voorhees v. Time Warner Cable National Division, 1999 WL 673062 (E.D. Pa. 1999). Cable television company did not retaliate against customer service manager by terminating her six months after initial FMLA leave and shortly after second leave. Although termination was close in time to protected activity, plaintiff did not provide any evidence to contradict defendant’s assertion that it fired her because she was unable to return to work at end of second leave period. xxii. Boriski v. City of College Station, 1999 WL 728336 (N.D. Tex. 1999). City water department did not retaliate against database administrator who took FMLA leave to undergo shoulder surgery when supervisors behaved rudely to her, threatened to fire her, gave her poor performance evaluations, and insisted that she punch a time clock after her return from leave. None of the actions plaintiff suffered were sufficiently severe to affect the terms and conditions of her employment. In addition, the plaintiff had extensive prior record of absenteeism that justified the employer’s counseling statement even if her FMLA-protected absences were not considered; thus, employer had legitimate non-retaliatory reason for taking action. xxiii. Hite v. Biomet, Inc., 1999 WL 115018 (N.D. Ind. 1999). Clerical employee stated sufficient claim of retaliation under the FMLA when she demonstrated that after she returned from leave following pregnancy and miscarriage, her work area was changed from a spacious office to a "cubbyhole," she was assigned more arduous work, and supervisors were constantly rude and insulting to her. The harassment suffered by plaintiff was sufficiently pervasive and severe to constitute a hostile work environment. Moreover, the timing of the adverse actions combined with the fact that plaintiff's employer provided no alternative explanation raises the inference of a causal link between the harassment and her FMLA leave. xxiv. Hite v. Biomet, Inc., 1999 WL 115018 (N.D. Ind. 1999). Clerical employee's discharge two months after she failed to report to work at the conclusion of a second FMLA leave was not retaliatory. The considerable time which elapsed between plaintiff's leave and her discharge, combined with the intervening cause provided by the fact that she did not report to work, dispels any inference of retaliatory intent. xxv. Hite v. Biomed, Inc., 1999 WL 445170 (N.D. Ind. 1999). Pharmaceutical company did not retaliate against of her 12-week FMLA leave period. Plaintiff was on additional medical leave for the 10 weeks between the end of her FMLA leave and her termination, and was terminated for failing to report to her employer or to provide medical certification to justify even longer extension of leave time. Accordingly, employer’s reason for terminating plaintiff was legitimate and nondiscriminatory. xxvi. Polderman v. Northwest Airlines, Inc., 1999 WL 181961 (N.D. Ohio 1999). Airline did not retaliate against flight attendant by terminating her for excessive absenteeism soon after a three-week FMLA leave. Plaintiff's absenteeism problems had existed since long before leave, she had been progressively disciplined and warned that she was on last chance status six months prior to taking leave, and FMLA leave period was not counted against her in calculation of absences. xxvii. Jeremy v. Northwest Ohio Development Center, 33 F. Supp. 2d 635 (N.D. Ohio 1999). Health care center did not retaliate against alcoholic employee by forcing him to resign during a period of incarceration resulting from drunk driving conviction. Although employer terminated plaintiff soon after he requested FMLA leave, evidence unequivocally indicated that his termination was due to unauthorized absence resulting from incarceration rather than his request for leave. xxviii. Morris v. Gencorp, Inc., 1998 U.S. Dist. LEXIS 2646 (N.D. Miss. 1998). Employer did not retaliate under FMLA when it terminated poorly performing employee who had taken FMLA leave several months previously and who continued in poor health after his return. Plaintiff offered no proof of discriminatory intent other than that he took medical leave, his supervisor witnessed him in a sickly condition, and other employees who suffered illnesses were not terminated. These facts standing alone are not sufficient to raise an inference of a causal connection between plaintiff's medical leave and his termination. xxix. McGarity v. Mary Kay Cosmetics, 1998 U.S. Dist. LEXIS 1150 (N.D. Tex. 1998). Cosmetics company did not retaliate against weigh technician when it suspended him for production error three months after his return from FMLA leave to care for newborn son. Plaintiff had received an excellent performance evaluation after returning from leave and prior to his suspension, which eliminates any inference that his supervisors were motivated by retaliatory intent. xxx. Chaffin v. John H. Carter Co., Inc., 1998 U.S. Dist. LEXIS 448 (E.D. La. 1998). Employer had legitimate nondiscriminatory reason to terminate computer programmer who was seen by supervisor in a bar while on medical leave, asked supervisor not to tell anyone that he saw her there, and refused to explain incident when she returned from leave. Plaintiff offered no evidence which would indicate that employer lied about its reasons for firing her, and the fact that her discharge occurred soon after her release from leave is not enough by itself to raise inference of retaliatory intent. Otherwise, any employer who granted FMLA leave to an employee would thereafter have its hands tied regarding any discipline of that employee xxxi. Dean v. Methodist Hospitals of Dallas, 1998 WL 826882 (N.D. Tex. 1998). Hospital did not retaliate against employee who took FMLA-protected leave when it terminated her employment six months later after prolonged period in which she did not report to work or contact employer. Plaintiff was on personal rather than FMLA leave at the time she sought reinstatement and refused offer of alternative employment, and there was thus no connection between her protected activity and her subsequent termination. xxxii. Gearhart v. Sears, Roebuck & Co., 1998 WL 781144 (D. Kan. 1998). Retail store did not retaliate against clerk by terminating her employment in response to her voluntary resignation on the same day she requested medical leave. Plaintiff's resignation provided a legitimate non-discriminatory reason for termination that negated any retaliatory inference raised by the timing of her discharge. In addition, employer did not retaliate against former clerk by forbidding another employee to communicate with her six months after her request for medical leave. A six-month time lapse between alleged protected activity and alleged adverse employment action defeats a claim of retaliation unless independent evidence exists to the contrary xxxiii. Dormeyer v. Comerica Bank-Illinois, 1998 WL 729591 (N.D. Ill. 1998). Bank did not retaliate by terminating pregnant employee who requested FMLA leave for severe morning sickness. Plaintiff was terminated due to absenteeism problem which had been documented, and for which she had been progressively disciplined, prior to her pregnancy xxxiv. DiIenno v. Goodwill Industries of Mid-Eastern Pennsylvania, 1997 U.S. Dist. LEXIS 19786 (E.D. Pa. 1997). Used-clothing resale business did not retaliate against employee by transferring her from tagging to processing duties two months prior to taking FMLA leave. At the time plaintiff was transferred, her employer did not know that she intended to take FMLA leave, so no inference of retaliatory intent existed. 5. Close temporal proximity may be basis for causal connection. i. Carter v. Enterprise Rent-A-Car Co. 2002 WL 1759821 (N.D. Ill., 2002) Assistant Manager at car rental company presented sufficient evidence to create an issue of fact that her termination on the basis that she had taken a gas card home was in retaliation for her request for FMLA leave. The Assistant Manager presented evidence that she been singled out, as her employer had failed to terminate other employees who took gas cards home in the past. In addition, she was terminated six days after she had completed the FMLA paperwork. Although the Account Executive failed to present any evidence that the vice president who terminated her was aware of her FMLA leave, the law only required her to produce evidence that would support an inference that he was aware of her request. ii. Smith v. Memorial Hospital Corporation, 302 F.3d 827 (8th Cir. 2002). Administrative secretary made a prima facie case of retaliation, as the temporal proximity between her FMLA leave and discharge were sufficient to establish causation. The plaintiff’s FMLA leave began on January 1 and the hospital foundation terminated her on January 14. iii. Skrjanc v. Great Lakes Power Service Company, 272 F.3d 309 (6th Cir. 2001). Pump technician presented a prima facie case of retaliatory discharge under the FMLA when he brought forth evidence showing a close temporal proximity between his making a request for future FMLA leave in order to undergo foot surgery, and his termination. The employer’s defense, that the plaintiff took more than twelve weeks to recover is not relevant to the particular right he asserts in this case; that is, the right to request twelve weeks of leave pursuant to the FMLA without being fired in retaliation. Furthermore, the five-month gap between his foot surgery and his new job with another company did not necessarily refute the plaintiff’s assertion that he was physically able to return to work at the end of 12 weeks. Finding a job might well have taken more time than it took him to recover, and would be a disputed issue of fact for a jury to decide. (Note, however, that the court rejected the plaintiff’s FMLA claim on other grounds.) iv. Panto v. Palmer Dialysis Ctr./Total Renal Care, 2003 U.S. Dist. LEXIS 5663 (E. D. Pa. 2003). A dialysis technician with lupus and rheumatoid arthritis who was fired for excessive absences failed to establish a prima facie case of retaliation under the FMLA. The plaintiff noted that she had been fired approximately two weeks after her return from leave. A causal connection between an employee’s protected activity and an adverse action by her employer may be inferred if the events occurred close in temporal proximity to each other. However, she had exhausted her FMLA leave, and her most recent leave was not protected by the FMLA. As a result, a temporal proximity did not exist, as seven months existed between the time she returned from her FMLA/extended leave and the termination of her employment. v. Merli v. Bill Communications, Inc., 2002 U.S. Dist. Lexis 4530 (S.D.N.Y. 2002). Magazine editor raised an issue of fact that his being passed over for promotion and eventual termination were in retaliation for his requesting FMLA leave to adopt a child in Russia. The plaintiff produced evidence of temporal proximity to causation between his request for leave and the employer’s adverse employment decision. The employer articulated nondiscriminatory reasons for the plaintiff’s termination such as staff reorganization, cutting costs, and a less than satisfactory performance record by the plaintiff. Unless the employer has come forward with evidence of a dispositive nondiscriminatory reason as to which there is no genuine issue and which no rational trier of fact could reject, the conflict between the plaintiff's evidence establishing a prima facie case and the employer's evidence of a nondiscriminatory reason reflects a question of fact to be resolved by the fact finder after trial. vi. Handel v. Belvedere USA Corp., 2001 U.S. Dist. LEXIS 17357 (N.D. Ill. 2001). Vice President raised an issue of fact as to whether he was fired in retaliation for requesting FMLA leave. The plaintiff produced evidence to show that his request for FMLA leave due to emotional distress and his termination occurred in close temporal proximity, and that an issue of fact existed as to which event came first. vii. Doebele v. Sprint Corporation, 2001 WL 950198 (D. Kan. 2001). Although employee with bipolar disorder established causation on the basis of temporal proximity between her use of FMLA leave and her termination, she failed to establish that her employer’s proffered reasons for her termination, absenteeism and inappropriate behavior, were pretextual. Thus her FMLA retaliation claim failed. Employer introduced sufficient evidence that her attendance problems and difficulties interacting with others, predated her use of FMLA leave. 6. Pretext i. Spurlock v. Peterbilt Motors Co., 2003 U.S. App. LEXIS 3185 (6th Cir. 2003). Former employee failed to establish a prima facie case of retaliation because there was no evidence to support his contention that he was fired because he used leave. Even had he established a prima face case, he would not have been able to demonstrate that the employer’s reason for firing him, poor performance, was pretextual. Specifically, the plaintiff failed to demonstrate that he was not the worst-performing operator or similarly situated to other operators who also fell short of the performance standards but were not discharged. ii. Smith v. Memorial Hospital Corporation, 302 F.3d 827 (8th Cir. 2002). Secretary was unable to establish that the employer’s reasons for terminating her were pretextual. Her prima facie case, based on temporal proximity, was far from strong and could not suffice to demonstrate pretext. The employer provided reasonable evidence to indicate that the plaintiff was terminated for the nature and magnitude of the plaintiff’s dereliction. First, the executive director had already spoken to the plaintiff about a complaint prior to the FMLA leave, which undercut the significance of the temporal proximity. Second, the executive director only realized how far behind the plaintiff was in her work because she was on FMLA leave. As a result, the relation between the timing of the plaintiff’s leave and her firing was not mere coincidence, but had a causal explanation that hurt rather than helped the plaintiff’s case. iii. Nichols v. Ashland Hospital Corp., d/b/a King's Daughters' Medical Center, 251 F. 3d 496 (4th Cir. 2001). Vice President of Nursing at a medical center established that her termination after requesting time off to recover from brain surgery constituted retaliation by demonstrating that the employer’s explanations for her termination were pre-textual. The employer’s negative assessment of the plaintiff’s job performance was issued after she requested sick leave, in order to create the appearance of a nondiscriminatory reason for the plaintiff’s termination. The employer had issued complimentary performance reviews and had awarded her annual bonuses and salary increases throughout her tenure at the medical center. Thus, there was sufficient evidence for the jury to conclude that the employer fabricated complaints about the plaintiff’s job performance as pre-textual reasons for her termination. iv. Camp v. Soo Line R.R. Co., 2003 U.S. Dist. LEXIS 2711 (D. Minn. 2003). Railroad car man diagnosed with depression who was fired shortly after taking FMLA leave established a case of retaliation by demonstrating that the company’s reason for firing him was pretextual. The two-week period between his request for FMLA forms and his termination, and eight days between the grant of leave and termination, created a temporal proximity that was enough, but “barely so,” to satisfy the prima facie case. The employer asserted that the plaintiff was terminated for the nondiscriminatory reason of excessive absenteeism and argued that any significance of temporal proximity was undercut by evidence that the railroad had been concerned about the absenteeism before plaintiff requested leave. However, the plaintiff produced a report that indicated other employees with absentee records worse than his were not subject to disciplinary actions. Although the plaintiff did not offer evidence that the decision makers were the same, the report, in conjunction with the temporal proximity, was sufficient to support a claim of pretext. v. Blackburn v. Potter, 2003 U.S. Dist. LEXIS 5269 (S.D. Ind. 2003). Letter carrier claiming she was wrongfully terminated for requesting FMLA leave failed to demonstrate that her employer’s absenteeism justification was merely pretextual. The plaintiff did not present sufficient evidence to rebut the employer’s legitimate, nondiscriminatory reason, namely her history of unexcused absences and progressive discipline, and later, allegations and investigation into whether she falsified documents offered in support of her FMLA request. In addition, the results of her employer’s forgery investigation were not material, because simply proving them wrong cannot satisfy the plaintiff’s burden to establish pretext. Arguing about the accuracy of the employer’s assessment is a distraction, because the question is not whether the employer’s reasons for a decision are right but whether the employer’s description of its reasons is honest. vi. Parker v. Hahnemann Univ. Hosp., 2002 U.S. Dist. LEXIS 24162 (D.N.J. 2002). A nurse established a prima facie case of retaliation under the FMLA by demonstrating that her employer decided to eliminate her job during the week immediately prior to her return from medical leave and terminate her the day she returned. Although the employer presented evidence that the job was slated for change before the plaintiff took FMLA leave and that the job was to be combined with another for efficiency and effectiveness reasons, the plaintiff raised an issue of fact of whether the employer’s proffered explanation was pretextual. Specifically, the plaintiff demonstrated that the employer created a position similar to hers after she left and pointed to the close proximity of the job elimination to her leave. Further, she presented evidence that her termination was due to the fact that the hospital did not want her to return to the position because they had become accustomed to completing the position’s tasks in other ways. vii. Sura v. Stearns Bank, 2002 WL 31898167 (D.Minn. 2002). Bank violated FMLA when it retaliated against a business production coordinator who had taken FMLA leave for pregnancy complications by restructuring her job duties and reducing her salary by 30 percent. The plaintiff was able to establish a prima facie case of retaliation by citing specific comments made by her boss. Specifically, her boss was disconcerted by the length of her leave, told her that she “held grudges,” and had voiced her concerns that the plaintiff would “not be able to handle her return from leave.” The bank also argued that the economic downturn and new priorities for the bank qualified as a legitimate business reason for restructuring the plaintiff’s job and reducing her salary. However, the plaintiff easily met the burden of demonstrating that these reasons were pretextual and that a reasonable juror could find that the bank’s stated reasons for lowering her salary were a cover for discrimination. viii. Brenlla v. Lasorsa Buick Pontiac 2002 U.S. Dist. LEXIS 9358 (S.D.N.Y. 2002). Employer’s refusal to reinstate comptroller upon her return from FMLA leave constituted retaliation. Plaintiff established retaliation by demonstrating that the reasons the employer articulated for not reinstating her were pre-textual. Specifically, the employer lacked credibility in his desire to save money by restructuring plaintiff’s job, because he hired another employee after refusing to reinstate the plaintiff after plaintiff took three months of leave. In addition, there was no business plan to support the restructuring. Plaintiff had satisfactory work history; and the temporal proximity between the request for reinstatement and the termination provided sufficient evidence for the jury to conclude that the termination was in retaliation for plaintiff exercising her FMLA rights. ix. Borner v. Zale Lipshy University Hospital, 2002 U.S. Dist. Lexis 4787 (N.D. Tex. 2002). Hospital retaliated against Insurance Coverage Verifier for taking FMLA leave when it could not articulate a legitimate nondiscriminatory reason for its refusal to reinstate her to her prior position after she completed an FMLA leave for stomach surgery. The hospital’s claim that her ten-pound lifting restriction would preclude her from performing her duties was pretextual because no such requirement existed. The hospital’s claim that it could not find a temporary replacement for the employee based on the complexity of her work was also pretextual because her work was not so highly specialized. x. Doebele v. Sprint Corporation, 2001 WL 950198 (D. Kan. 2001). Although employee with bipolar disorder established causation on the basis of temporal proximity between her use of FMLA leave and her termination, she failed to establish that her employer’s proffered reasons for her termination, absenteeism and inappropriate behavior, were pretextual. Thus her FMLA retaliation claim failed. Employer introduced sufficient evidence that her attendance problems and difficulties interacting with others, predated her use of FMLA leave. xi. Banuskevich v. City of Nashua, NH and Nashua Police Commission, 2001 DNH 100 (D. N.H. 2001). Communications technician raised an issue of genuine material fact as to whether her employer’s rejection of her application for a higher paying position was a retaliation for her having taken sick leave, some of which was covered by the FMLA. The employer argued that the real reasons for the rejection were primarily two disciplinary reports unrelated to sick leave use, the employee's performance on a 1998 driving test, and her 1990 driver's license suspension for excessive speeding tickets. However, the plaintiff was able to offer evidence, such as deposition testimony and affidavits, supporting and recounting statements allegedly made to her by the decision- maker suggesting that the proffered legitimate reasons for rejecting her application may have been pre-textual and would not, on their own, have kept her from securing the higher-paying position. Thus, a genuine dispute arises concerning the actual reasons for rejecting plaintiff's application. xii. Beno v. United Tel. Co. of Florida, 969 F. Supp. 723 (M.D. Fla. 1997). Termination of systems analyst during FMLA leave for fraudulently reporting $18 in meal expenses on expense account was not pretextual. Employer had discovered plaintiff's misconduct and taken steps to terminate her prior to her medical leave, and other employees who had committed similar misconduct involving similar amounts of money had also been terminated 7. Plaintiff must demonstrate that persons making negative comments about FMLA leave are the same as those who took the adverse employment action to establish a retaliation case. i. Schafer v. Querrey & Harrow, Ltd., 2002 U.S. Dist. Lexis 3695 (N.D. Ill. 2002). Legal secretary, terminated due to excessive absenteeism after returning from FMLA childbirth leave, failed to establish that the attorneys who had made offensive pregnancy- related comments were decision-makers. Occasional offensive comments are not relevant in an employment suit unless the plaintiff can show that the person making the comments is the same one who made the adverse employment decision. The plaintiff admitted that she had no evidence that the persons she identified as making comments regarding her pregnancies also made decisions regarding alleged retaliatory actions such as desk assignment, phone access, pay increases or bonus, or her eventual termination. D. Individuals, and not merely employees are protected from retaliation for opposing any practice which violates the FMLA or which the individual reasonably believes violates the Act. 29 C.F.R. § 825.220(e).