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					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).

				
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