FMLA – Temporal Proximity Defeats Summary Judgment

It cannot be stressed enough that when an employee is terminated shortly after availing herself of FMLA protected rights, courts are reluctant to grant summary judgment. In Villiard v. Whitemarsh Continuing Care Retirement Cmty., 2012 U.S. Dist. LEXIS 177910 (December 17, 2012) (Pratter J), the Plaintiff sued her former employer for FMLA interference and retaliation and for worker’s compensation retaliation under Pennsylvania law. Plaintiff, a Certified Nursing Assistant, injured her shoulder while moving a resident. After Plaintiff reported her injury, she continued working but in a non-CNA position with lifting restrictions and she had to take intermittent FMLA leave to receive treatment for her injuries during the work day. Plaintiff returned to her CNA duties 3 months later. Within 5 months after the injury Plaintiff was terminated for acting antagonistically towards employees investigating an allegation that Plaintiff was rude to a resident. In denying a Motion for Summary Judgment, the court noted “temporal proximity between [a] protected activity and [a] termination may be sufficient to establish a causal link.” See  Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997). As a consequence the court found that the Plaintiff, who was terminated only 2.5 months after returning from her reduced schedule can use temporal proximity to create a triable issue, particularly when augmented with the fact that she had positive performance evaluations prior to her FMLA leave; another CNA who used vulgar language and acted disrespectfully in front of a patient was not terminated for such behavior; and even though Defendant had a progressive discipline policy, Plaintiff had never been subject to any disciplinary action prior to the termination. For more information on the FMLA and Abramson Employment Law see

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Filed under Employment Law, FMLA

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