FMLA Retaliation & Disability Harassment: Employee Who Suffers Adverse Action Following Leave Has Viable Claims

When employees take leave from work due to a medical condition and are subject to retaliation upon their return to work, both the Family and Medical Leave Act (FMLA) and disability discrimination laws can provide a legal basis for a claim. In DeMeo v.The Vanguard Group, Inc., 2014 U.S. Dist. LEXIS 8877 (January 21, 2014, Rufe, J.), the Plaintiff employee, who worked for the employer for 17 years, began to have problems at work with his team leader which intensified after an initial return from leave from FMLA and ultimately, the employee later taking a second leave and never returned to work.

In DeMeo, the employee filed FMLA retaliation and disability harassment claims against the employer. To prevail on a FMLA retaliation claim a plaintiff employee must prove that (1) the employee invoked the right to FMLA-qualifying leave, (2) the employee suffered an adverse employment decision, and (3) the adverse action was causally related to the invocation of FMLA rights. FMLA claims based on circumstantial evidence are analyzed under a burden-shifting framework where the Plaintiff has the burden of making a prima facie case that he has satisfied each element; Defendant then has the minimal burden of producing some legitimate reason for its employment action’s, then the burden shifts back to Plaintiff to point to some evidence, direct or circumstantial, from which a fact finder could reasonably disbelieve the employer’s articulated non-discriminatory reason.

In DeMeo, the court found that the plaintiff employee met his initial FMLA retaliation burden by arguing argued that after his FMLA leave, his managers increased his workload, would not meet with him when he wanted to, and gave him a false and harshly negative end of the year performance review that caused him to receive less pay than he deserved. The court found this evidence met the initial burden of stating a prima facie case that the employer took adverse employment action against him: he took FMLA leave; his relationship with his employer deteriorated; and shortly after the end of the FMLA leave, the employee felt compelled to take a second leave to avoid his supervisor. The court also found that the employer met its burden of pointing to facts that could allow a fact finder to conclude that its actions were justified because performance reviews before and after leave were quite similar in their overall negative ratings, and that it could be argued that the supervisors actions were not adverse employment actions because they did not prevent the employee from continuing to complain about supervisor. Ultimately, the court concluded that a jury could find FMLA retaliation because a subsequent near-violent outburst by the supervisor could have caused a reasonable employee to seek a transfer outside of the supervisor’s department and also caused the employee to leave on the same day the supervisor confronted him.

The court also found that the employee had a viable “disability harassment” claims under the Americans with Disabilities Act (ADA) and the Pennsylvania Human Relations Act (PHRA) where an employee must establish that: (1) he has a disability under the ADA; (2) he was harassed; (3) the harassment was based on his disability or a request for an accommodation; (4) the harassment was sufficiently severe or pervasive to alter the conditions of his employment and to create an abusive working environment; and (5) that the employer knew or should have known of the harassment and failed to take prompt effective remedial action. The court found that for the same reasons that a fact finder could conclude that the supervisor acted in response to the employee’s exercise of his rights under the FMLA, it could also conclude that he was prejudiced against the employee for exhibiting symptoms of depression and that his prejudice translated into abusive behavior.

To decide the disability harassment claim courts must consider all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. In so doing, in Demeo, the Court focused on the supervisor, the frequency and severity of his alleged bad behavior toward the employee which increased in the time immediately following the employee’s return from FMLA leave, and the employee’s testimony which were found sufficient to conclude that the supervisor’s confrontation of the employee, when he raised his voice, waved his arms, and was perceived as aggressive, was physically threatening. Moreover, the court held that a fact finder could conclude that the supervisor’s actions unreasonably interfered with the employee’s performance, since the employee suffered a panic attack, requested a transfer, and left work immediately after the confrontation. Although the confrontation was the culminating event of alleged harassment, it was not the only event that made the employee uncomfortable at work, particularly with the supervisor. The court also pointed to evidence that the employee contends that the supervisor had given him a bad performance review upon his return from leave and had failed to supervise him, facts which suggest the supervisor’s antipathy toward the employee. Because the parties genuinely dispute the significance of the facts related to the supervisor and the facts are amenable to different interpretations, the court held that summary judgment is inappropriate on the employee’s ADA harassment claim.

For more information on the FMLA, Disability Discrimination and Abramson Employment Law see,,


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Filed under Americans with Disabilities Act - Disability Discrimination, FMLA, Hostile Work Environment

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