Transfer not always FMLA Adverse Action

By | February 5, 2008

DiCampli v. Korman Communities, 2007 WL 4351348 (CA 3 (Pa.)), 13 Wage & Hour Cas.2d (BNA) 189.

Employee was promoted to General Manager of apartment facility. Prior to promotion, employer remarked that employee’s sales skills were below expectation and that she would need to improve in that area during her employment as General Manager. Employee received partial quarterly bonuses for partially meeting planned revenue targets.

Employee later notified employer that she planned to take maternity leave under the FMLA. After employee left for maternity leave, employer instituted reorganization of apartment management to improve decline in revenues. While on leave, DiCampli was informed that she was being removed as General Manager and would assume role of Operations Manager upon return from leave. Employer also expanded IT department and offered DiCampli position as IT trainer. Salary and benefits were the same as she was receiving as Operations Manager although bonus structure was more subjective.

Despite being urged to accept the IT position by corporate officers, DiCampli refused because position would require a longer commute and require purchasing a new family vehicle to perform the commute. Employer terminated employee upon her refusal to accept the new position. DiCampli sued for FMLA retaliation.

Employee relied upon bonuses received and favorable performance review to counter employer’s claim of poor performance. Court found that partial bonuses and review actually supported employer’s case as employee did not meet revenue targets and partial and not full bonuses were therefore given.

Proposed transfer was not an adverse action. It had identical pay and benefits as Operations Manager position. Employee offered no objective evidence that IT trainer position was less desirable or prestigious than that of Operations Manager. Opportunities for bonuses were not much different and could’ve been better in IT position. Longer commute was not evidence of adverse action either.

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