Category Archives: FMLA

FMLA and ADA: Employee Who Takes FMLA Leave, Does Not Return to Work and Retires Has Viable Claims under the FMLA and ADA

In some circumstances when an employer makes work conditions so intolerable, ultimately causing the employee to no longer work for the employer and retire, an employee may still have viable legal claims. In Pallatto v. Westmorland County Children’s Bureau, 2014 U.S. Dist. LEXIS 27008 (W. D. Pa. March 3, 2014), the Plaintiff employee was employed as a case worker for 13 years. The employee was disciplined on a number of occasions for use of sick leave when she informed her supervisors that she was suffering from migraines and sleep problems. Thereafter, the employee applied for leave under the Family Medical Leave Act (“FMLA”) and again informed her supervisors of her headaches and difficulty sleeping and the effect that each had on her ability to perform her job. Ultimately, the employee was diagnosed with lupus; she informed her immediate supervisor and provided a doctor’s note to the department administrator. Thereafter, the employee requested help from fellow caseworkers in completing her work and conducting visits, a common practice within the office. The employee’s managers questioned the legitimacy of the employee’s illness and made comments such as she was not really sick and she should find a job that she was able to perform. The employee was also repeatedly harassed about her use of sick time despite providing doctor’s notes. The employee was advised she would have to work later than the 4:00 p.m. time she previously ended work, even though the employee told supervisors that working past 4:00 p.m. prevented her from taking her medication. Eventually, the employee filed for indefinite leave under the FMLA; did not return to work and she eventually retired from her employment based on a disability.

In Pallatto, the employee filed claims against her former employer under the FMLA, and for disability discrimination under the ADA and the PHRA. The Court found that the employee set forth a prima facie claim for FMLA retaliation by demonstrating she was protected under the FMLA and she suffered a materially adverse employment action causally related to the exercise of FMLA rights because a reasonable jury could find that the numerous employment actions levied against her after she applied for FMLA leave were sufficient to create an overall scenario that would dissuade a reasonable worker from exercising FMLA rights, This evidence included the schedule alteration requiring the employee to meet with clients at times when she was unavailable; an expectation that she keep her case files updated by the day, while other caseworkers were given a month; prohibiting co-worker assistance in completing work even though this was a common practice within the workplace; and her immediate supervisors harassing her about missing work and telling her to quit and find a job she could perform. While the employer offered a legitimate nondiscriminatory reason for its action in that plaintiff was missing visits, making unannounced home visits when no one was present at the client’s home and falling behind with her dictation, the court found that the employee showed that these reasons could be pretextual because disciplinary and remedial measures aimed at the employee were not applied to others within the office. As such, the court concluded that the evidence sufficiently demonstrates weaknesses and inconsistencies in the employer’s proffered reasons for its actions.

The Court also found that the Plaintiff employee adduced sufficient evidence to create a genuine issue of material fact with respect to her claim for disability discrimination under the ADA and PHRA because a reasonable jury could find that the employee established an impairment through her FMLA application and her diagnosis of lupus which substantially affected major life activities such as sleeping and concentrating, as her condition affected her sleep and left her fatigued and unable to work. The court also found that the employee’s proposed accommodations, that fellow coworkers be allowed to help her complete her work and be allowed to see children in the morning so that she would not have to work past 4:00 p.m., were reasonable. The court also found that under the ADA, adverse employment decisions include the refusal to make reasonable accommodations for a plaintiff’s disabilities and there was sufficient evidence to support the contention that the employee asked for an accommodation and the employer did not make a good faith effort to assist her. Thus, the court found that because a reasonable jury could find that plaintiff was disabled and a qualified person under the ADA who requested and was denied a reasonable accommodation; and the employer had not identified legitimate reasons as to why plaintiff’s requested accommodations had to be rejected, the employer’s motion for summary judgment with respect to plaintiff’s ADA and PHRA discrimination claims must be denied.

In Pallatto, the court also found that the plaintiff employee produced sufficient evidence to move forward on her claim for hostile work environments because her job was made more difficult and frustrating through the actions of her supervisors, she was required to work a revised schedule that was known to be very difficult for her given her impairment and she also was subject to constant harassment about her illness.

For more information on the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA) and Abramson Employment Law see,

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FMLA: FMLA Protection for Employee Absent from Work 4 Days with Tooth Abscess

The Family and Medical Leave Act (FMLA) protects employees who are absent from work due to a serious medical condition. Most often FMLA job reinstatement rights are invoked when there is need for a leave of absence from work for 12 weeks of less due to a medical surgery, sudden illness or long-term health problem which requires immediate treatment. In certain circumstances an employee’s right to reinstatement under the FMLA may be protected where there is a relatively short absence from work. In Keiderling v. RFM Services, Inc., 2014 U.S. Dist. LEXIS 9734 (M. D. Pa. January 27, 2014) (Mariani, J.), the Plaintiff employee worked as a customer service representative. The employee had a tooth abscess which caused a need to leave work early on one day; thereafter the employee missed three consecutive days of work. On each day the employee was absent he called out of work by leaving voicemail messages, calling out sick for that particular day and not for more than one day at a time. During the four-day absence the employee’s medical treatment for the tooth included: contacting his dentist who called in a prescription drug for him; seeing his family doctor, and being given another prescription drug; going to the emergency room as an outpatient and receiving prescription drugs; and seeing his dentist and having his tooth drained. The employee provided two written medical excuses; but not for the day he left early and the first full day missed. While the employee was absent from work his supervisors made comments indicating an intent to terminate the employee such as, “We need to find a reliable, responsible person” and “I told you we should get rid of” him a while ago “but sometimes the devil you know is better than the devil you don’t know. I am working on it. I’ll take care of it. Thanks for your patience.” One day after the employee returned to work he was terminated for “excessive absences.”

Under the FMLA, an eligible employee is entitled to take leave from work for a “serious health condition,” which is defined as “an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, or (B) continuing treatment by a health care provider.” Continuing treatment by a health care provider is defined as “period of incapacity of more than three consecutive, full calendar days . . . that also involves . . . [t]reatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.” Incapacity means the “inability to work . . . or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom.” Id. § 825.113(b). An employee may satisfy the burden of proving three days of incapacitation through a combination of expert medical and lay testimony.

Once an employee invokes his FMLA rights an employer may not interfere with, restrain, or deny the exercise of, or attempt to exercise FMLA rights. An employee need not show that he was treated differently than others. Further, the employer cannot justify its actions by establishing a legitimate business purpose for its decision. An FMLA interference action is not about discrimination, it is only about whether the employer-provided the employee with the entitlements guaranteed by the FMLA. Further, firing an employee for a valid request for FMLA leave may constitute interference with the employee’s FMLA rights as well as retaliation against the employee. While to invoke FMLA rights an employee must provide adequate notice of a need for FMLA leave, a formal written request may not be required and an employee need not expressly assert rights under the FMLA or even mention the FMLA.

In Keiderling, although the Plaintiff employee did not have medical excuses in the form of doctor’s notes for the first two days he was out of work, the employee advised the employer that he had pain from his “bad tooth ache abscess” and went to the dentist. The Court found that although FMLA regulations state “[t]reatment does not include routine physical examinations, eye examinations, or dental examinations,” a material issue of fact exists as to whether the employee suffered from a ‘serious health condition.’ Applying the FMLA regulations in Keiderling, the court found that because the employee provided the employer with two medical excuses upon his return, the combination of extended treatment coupled with medical excuses could be sufficient to put the employer on notice of potential FMLA-qualifying leave because in situations where the employer does not have sufficient information about the reason for an employee’s use of leave, the employer should inquire further of the employee to ascertain whether leave is potentially FMLA-qualifying. Thus, the Court found that the employee could establish his invocation of FMLA rights and the employer’s actions in terminating his employment would have interfered with those rights.

The court also found that the employee could prevail on a FMLA retaliation theory where once an employee invokes his FMLA rights, an employer may not discharge or in any other manner discriminate against any individual for opposing any practice made unlawful. To prevail on a retaliation claim under the FMLA, the employee must prove that (1) the employee invoked a right to FMLA-qualifying leave, (2) suffered an adverse employment decision, and (3) the adverse action was causally related to invocation of rights. FMLA retaliation claims are based on circumstantial evidence which are assessed under the McDonnell Douglas burden-shifting framework where the employee has the initial burden of establishing a prima facie case. To do so, an employee must point to evidence in the record sufficient to create a genuine factual dispute about each of the three elements of the retaliation claim: (a) invocation of an FMLA right, (b) termination, and (c) causation. Then the burden of production shifts to the employer articulate some legitimate, nondiscriminatory reason for its decision. Then the employe must point to some evidence, direct or circumstantial, from which a factfinder could reasonably disbelieve the articulated legitimate reasons.

When the temporal proximity (i.e. timing) between the protected activity and adverse action is unduly suggestive, this alone can be sufficient to create an inference of causality and defeat summary judgment. Since the employee in Keiderling was fired the day after returning from a four consecutive day absence from work, the court found the timing sufficiently suggestive to create an inference of causation and defeat summary judgment, finding the Plaintiff met the burden of showing pretext, requiring a jury to determine the true reason for the employee’s termination.

For more information on the Family and Medical Leave Act (FMLA) and Abramson Employment Law see

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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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Disability Discrimination and Age Discrimination: Cancer Survivor Who Returns to Work After Treatment and is Terminated Has Viable Disability and Age Discrimination Claims

Employees who experience serious medical conditions, undergo treatment and return to work after a leave of absence may be targets for termination when their employers subsequently have a “reduction in force.” In Buller v. PPG Industries, Inc., 2013 U.S. Dist. LEXIS 170358 (W. D. Pa. December 3, 2013)(J. Schwab), a cancer survivor whose employment was terminated filed a lawsuit against her former employer alleging that she was terminated from her employment in violation of the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”). The Plaintiff was employed for 21 years as an Administrative Assistant, first in the employer’s Corporate Environment, Health and Safety Department and then the Executive Compensation Department of Human Resources. Plaintiff’s duties included data entry, preparing agendas for executive meetings, and other secretarial duties. Throughout her career of employment the Plaintiff had positive job performance reviews.

In 2008, Plaintiff was diagnosed with breast cancer which required her to undergo a mastectomy and chemotherapy radiation treatments; she took off eight weeks of work for her treatment. Plaintiff’s cancer returned in early 2010. In late 2008, a Voluntary Severance Plan was available and Plaintiff’s supervisor suggested that Plaintiff’s position could be eliminated; however, Plaintiff’s position was not eliminated because of other factors. By 2009, Plaintiff’s duties were becoming increasingly automated and Plaintiff became concerned that her job was becoming irrelevant within the department and she requested additional responsibilities. The next year in July 2010, Plaintiff was informed that her position would be eliminated and informed that the decision was unrelated to her job performance and was strictly a business decision. It was suggested that Plaintiff apply for another position as a call service representative in the benefits department. While Plaintiff was interviewed it was ultimately determined that Plaintiff would not be offered the position which was offered to an outside candidate not previously employed by the employer and Plaintiff’s last day of employment was August 31, 2010, at which time she was 57 years of age. Ten months later, plaintiff was offered an “HR Direct Specialist” position which she rejected.

The Court denied the Defendant employer’s Motion for Summary Judgment, finding the Plaintiff employee presented sufficient evidence that her supervisors were aware of her cancer diagnosis; she did have sufficient work within her department; she was recommended for termination after her cancer diagnosis; her cancer was discussed when she was terminated; other individuals were not terminated during the alleged “reduction in force”; Plaintiff’s job duties were transferred to younger workers who were not disabled; she was not hired for the HR Shared Services Center Representative position; the employer’s policy to only consider internal candidates for an open position until the internal employee candidates were rejected was not followed; and other supervisors at the employer may have become aware of her cancer diagnosis. Given these facts that court found that the employee had a sufficient basis to proceed to trial with her disability and age discrimination claims.

For more information on the Americans with Disabilities Act, Disability Discrimination, age discrimination and Abramson Employment Law see,

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Retaliation: Employee Terminated Shortly After Assisting Another Employee with a Sexual Harassment Claim and Taking FMLA Leave has Viable Claims of Retaliation

Employment laws provide protection for employees who are terminated shortly after engaging in “protected activity.” Santiago v. Citywide Community Counseling , Services, Inc., 2013 U.S. Dist. LEXIS 113087 (August 12, 2013)(Kelly, J.), demonstrates that an employee who is terminated after assisting another employee with a sexual harassment case and taking leave protected by the FMLA may have viable retaliation claims against a former employer. In Santiago, the Plaintiff, who worked as a Building Manager for over 5 years, recommended that her employer hire a friend of Plaintiff’s daughter. Several months after being hired, the friend complained of being sexually harassed by a male therapist. Plaintiff advised the friend to file a formal complaint with management and Plaintiff called her supervisor to inform her about the sexual harassment complaint. Defendant’s owner then called Plaintiff on the phone and told her that he did not want the complaint to “get out” because it “could hurt the clinic.” The friend was terminated shortly thereafter due to purported attendance issues and filed a lawsuit against Defendant claiming sexual harassment and retaliatory discharge. Thereafter, Defendant’s owner repeatedly complained to Plaintiff and blamed Plaintiff for the lawsuit.

In Santiago the Plaintiff also had to take a leave from work for unrelated matters and utilized FMLA leave. Upon return from FMLA leave Plaintiff was asked if she would take a voluntary demotion to work part-time work and then within 24 days of returning from FMLA leave the Defendant employer terminated Plaintiff’s employment allegedly for “financial reasons.” Plaintiff claimed that her termination was retaliation for her involvement in the sexual harassment complaint filed by the friend and Plaintiff’s use of FMLA protected leave.

In Santiago, the Court found that the Plaintiff had two viable claims of retaliation. First as to assisting the friend for retaliation, this activity is protected by Title VII which requires Plaintiff to show: (1) she engaged in activity protected by Title VII; (2) the employer took an adverse employment action against her; and, (3) there was a causal connection between her participation in the protected activity and the adverse employment action. The court found that Plaintiff sufficiently plead a retaliation claim when she engaged in an activity protected by Title VII by providing assistance to the friend in the filing of the sexual harassment claim in after which the owner of Defendant, expressed concern to Plaintiff that it “could hurt the clinic” and then the owner repeatedly complained to Plaintiff and blamed her for the lawsuit. The Court found that the Plaintiff’s assistance to the friend who reported an incident of sexual harassment and her connections to the person complaining about sexual harassment constitute protected activity. The Court also ruled that Plaintiff could proceed with her FMLA retaliation claim because by pressuring Plaintiff to take a demotion and shortly thereafter terminating her employment, Plaintiff adequately set forth facts supporting a claim for relief under the FMLA because she was eligible for FMLA leave; provided adequate notice to Defendant of her intent to take FMLA leave; took qualifying FMLA leave; was asked to take a demotion; and then fired 24 days after her return from FMLA leave.

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Age Discrimination and FMLA Retaliation: 65 year old Employee Whose Job Duties Are Assumed by a 35 year old Has Viable Age Discrimination and FMLA Retaliation Claims

In Staffieri v. Northwestern Human Services, Inc., 2013 U.S. Dist. LEXIS 72115 (E. D. Pa. May 22, 2013)(Kelly, J.), the court denied the Defendant employer’s Motion for Summary Judgment, finding that a 65-year-old employee whose duties were assumed by a 35-year-old employee may proceed to trial with his claims of age discrimination, retaliation and violation of the Family and Medical Leave Act (“FMLA”).

In Staffieri, the Plaintiff employee, who was employed as a Director of Security, was terminated 7 months after taking a FMLA leave for knee surgery after he made multiple complaints of age bias and discriminatory treatment to management. The Defendant employer contended that the Plaintiff could not establish that his responsibilities were transferred to a significantly younger employee. The Court relied upon Torre v. Casio, Inc., 42 F.3d 825, 831 (3d Cir. 1994), finding that indirect evidence that other younger employees were not fired when the Plaintiff was terminated was sufficient and in the context of a job elimination setting, the facts permitted an inference of age discrimination because Plaintiff was the only employee terminated and younger employees were retained.

As to the FMLA claim, in looking at the time between the FMLA leave and the termination of employment, approximately 7 months, the court noted that while temporal proximity (the time between the protected activity and the termination of employment) is an “obvious method” to raise an inference of unlawful activity, it is not the only consideration and circumstantial evidence of a pattern of antagonism after a Plaintiff takes FMLA leave may also give rise to the inference of causation under Kachmar v. Sungard, 109 F.3d. 173, 177 (3d Cir. 2007). Thus, in Staffieri, the court concluded that the Plaintiff demonstrated a pattern of antagonism related to qualifying FMLA leave based upon evidence that he was treated “very badly;” was denied a request for a handicapped parking spot even though he was recovering from knee surgery; was excluded from meetings; job responsibilities were being handled by another employee and the employer was attempting to move Plaintiff to a smaller office.

For more information on age discrimination, FMLA leave and Abramson Employment Law see,

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Unemployment Compensation: Evidence Concerning Retaliation for Taking FMLA Leave is Admissible

The issues in an unemployment compensation hearing and an employment discrimination/retaliation case are often very similar. Many times employers contest an unemployment compensation claim when an employee intends to pursue an employment discrimination claim against the employer. Unemployment referees often do not permit testimony where the employee contests the employer’s stated reason by arguing that the real reason the employee was terminated was retaliation for engaging in protected activity, such as taking FMLA leave. In Brett v. Unemployment Compensation Board of Review, 2013 Pa. Commw. Unpub. LEXIS 266 (April 4, 2013), the Commonwealth Court made it clear this type of testimony is relevant. In Brett, the Unemployment Compensation Board of Review had affirmed a Referee’s determination that the Claimant was ineligible for benefits under 402(e) of the Unemployment Compensation Law, finding that the employee engaged in willful misconduct by falsifying time cards when the claimant left work earlier than the time marked on his time sheet without good cause. However, the Commonwealth Court remanded the case holding, “Even if the findings of fact establish that Claimant committed willful misconduct are supported by substantial evidence, Claimant is correct that the Board failed to address whether his termination was in retaliation for his use of leave pursuant to the FMLA.” Thus, in Brett, the Commonwealth Court vacated the Board’s decision and remanded the case for the Board to make findings and conclusions as whether the Claimant is eligible for unemployment compensation benefits in light of the contention that the employee was discharged in retaliation for utilizing FMLA leave. Now when an employee at a Referee’s hearing claims that the termination of employment was actually retaliation for engaging in protected activity such as taking FMLA leave, Brett provides a basis for arguing that testimony concerning retaliation for engaging in protected activity is relevant and admissible.

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