The employee later brings an FMLA retaliation suit claiming now that he was terminated in retaliation for taking FMLA leave. The district court determines that he was never eligible for FMLA leave as he was not needed for the care of his daughter. His departure from the Florida hospital and return to Texas demonstrate this. The employee argues that part of the reason for returning to Texas was to prepare the home for his daughter’s arrival and for her medical condition (head trauma). District court remarked that “care” under the FMLA requires actual care in close and continuing proximity with the sick family member.

Fifth Circuit Court of Appeals agreed and determined that even frequent telephone contact between the employee and his daughter did not satisfy the physical proximity requirement of care giving.

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Upon learning of his wife’s pregnancy and due date of early 2008, Chad Wilson made plans with his mother-in-law for child care. Wilson’s plans changed when his mother-in-law developed cancer in late 2007. Wilson’s next move was to tell his supervisor, Kurt Hoffman, that he might need to take leave in order to care of the baby. Wilson told the same thing to his supervisor’s administrative assistant.

Wilson’s supervisor recommended him for a raise and promotion in January 2008. Wilson eventually received both but was not happy with the amount of the raise. Wilson took the matter up with his supervisor’s boss. When his supervisor learned that he had been bypassed concerning discussions of the raise, he was upset with Wilson. Wilson was asked to apologize to the supervisor but refused. Wilson also refused instruction on following proper protocol. Hoffman later stated that when he approached Wilson about the lack of protocol, Wilson was dismissive and unapologetic. Based on these factors, Hoffman decided to terminate Wilson as he had lost confidence in Wilson’s ability to represent the company to customers. Wilson sued claiming FMLA retaliation.

The court agreed that Wilson had suffered an adverse action and that the close timing between the alleged protected activity and adverse action demonstrated a causal connection for prima facie case purposes. However, the court had difficulty finding that Wilson had engaged in a protected activity. The court remarked that while an employee is not required to specifically state that he is asserting rights under the FMLA, he must “provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave.” 29 C.F.R. § 825.302(c).

Wilson’s statements of potentially needing FMLA leave were not sufficient to make his employer aware that he needed FMLA leave nor did they convey the anticipated timing and duration of the leave. Wilson’s retaliation claim failed on those grounds.

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Kathleen Ryl-Kuchar began working for Care Centers in 1985 as a part-time dishwasher. She was 15 years old when she began her employment there. She stayed on with Care Centers for another 18 years and worked her way up to the position of dietary consultant. Near the end of 2002, Ryl-Kuchar found out that she was pregnant. She later discovered that she was carrying triplets. Ryl-Kuchar informed an employee in the human resources department of her pregnancy who told her that she could take up to 12 weeks of FMLA leave as a result of her pregnancy.

Ryl-Kuchar did not take FMLA leave immediately but waited to do so until near the end of her pregnancy. She continued working her normal schedule until she was “too big to fit behind [the steering] wheel” of her car. At that point, she continued working from home and performed her normal duties. The Chief Operating Officer for Care Centers, Mark Steinberg, approved Ryl-Kuchar’s work from home arrangement. While working at home, her hours fell to below 35 per week.

On July 17, 2003, Ryl-Kuchar gave birth to three sons. She remained at the hospital for a short period of time and then returned home and continued working for Care Centers. She continued working and caring for her newborn sons through the end of July. It soon became apparent that she could not continue juggling all of these responsibilities. At this point, she commenced her FMLA leave with the intent to return to work in the fall. In September, she made the decision to resign her employment so that she could raise her sons. Ryl-Kuchar submitted her resignation to Care Centers effective October 1, 2003.


In mid-November 2003, Ryl-Kuchar’s health insurance was retroactively cancelled effective June 15, 2003. She did not realize this until sometime in early 2004 when she began receiving notices that her medical bills were not being paid. Care Centers used another company, CCS Veba, to manage its employee benefits program. CCS Veba had determined that Ryl-Kuchar became a part-time employee in June when she was working 35 hours a week from home. At that point in time, according to CCS Veba, Ryl-Kuchar lost her eligibility for health insurance.

Ryl-Kuchar later brought suit alleging that Care Centers had violated the FMLA by interfering with her FMLA rights and unlawfully retaliating against her through the retroactive termination of her health insurance benefits. Ryl-Kuchar argued that Care Centers and CCS Veba were not independent, separate organizations because the plan administrator for CCS Veba was married to the owner of Care Centers; CCS Veba was referred to as the “insurance department” of Care Centers; and the two organizations shared the same facilities.

Ryl-Kuchar claimed that Care Centers was motivated by rising health care costs. In fact, an article had been written about this in the company newsletter. She also argued that she never became a part-time employee despite the drop in hours as she was a salaried employee and her pay remained the same during this period of reduced working hours. It was only after she took FMLA leave that Care Centers audited her payroll records and found the mistake.

The matter went to trial where Ryl-Kuchar argued that Care Centers interfered with her FMLA rights to continued health insurance and did so in retaliation for her decision to take FMLA leave.

To carry the day at trial on her FMLA interference claim, Ryl-Kuchar had to demonstrate that: (1) she was eligible for FMLA protection; (2) Care Centers was covered by the FMLA; (3) she was entitled to FMLA leave; (4) she provided sufficient notice of her intent to take leave; and (5) Care Centers denied her benefits to which she was entitled (in this case, continued health insurance). As for retaliation under the FMLA, since she chose a direct method of proof, she was only required to show that Care Centers retroactively cancelled her health insurance “to punish her for requesting or taking FMLA leave.”

At the end of deliberations, the jury found that Ryl-Kuchar had carried her burden of proof on both claims and awarded her $30,000 in damages (which equalled her unpaid medical bills). Care Center moved for judgment notwithstanding the verdict. The trial court denied that motion and awarded Ryl-Kuchar prejudgment interest and liquidated damages of approximately $50,000.

Care Centers appealed the trial court’s decision denying its motion for judgment notwithstanding the verdict. The Seventh Circuit Court of Appeals reviewed the trial court’s decision with an eye towards “whether the evidence presented, combined with all reasonable inferences permissibly drawn therefrom, is sufficient
to support the verdict when viewed in a light most favorable to the party against whom the motion is directed,” Haley v. Gross, 86 F.3d 630, 632 (7th Cir.1996).

The court of appeals determined that sufficient evidence existed to conclude that CCS Veba was merely an arm of Care Centers and not a separate entity. Given this evidence, the jury properly used its discretion to impute CCS Veba’s motivation to Care Centers. The jury then had to have sufficient evidence before it to determine that that motive was retaliatory in nature. The appeals court found that the evidence of the timing of the decision, Care Centers’ concerns about rising health care costs and the inconsistencies concerning Ryl-Kuchar’s employment status met the preponderance of the evidence standard and were sufficient to support the jury’s finding of retaliation.

The appeals court made shorter shrift of the interference claim finding that a reasonable jury could have concluded that Ryl-Kuchar was a full-time employee until she took leave in August 2003 and thus entitled to health insurance through the date of her resignation.

Employers should take note of this decision and make all determinations concerning an employee’s employment status prior to approving FMLA leave rather than doing so after the fact and retroactively terminating benefits.

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In 1995, Monique Almeida was hired as a Certified Nurses Assistant by Bayview Health Center, Inc. Bayview is a nursing home located in Waterford, Connecticut and employs approximately 201 employees. Athena Health Care Associates, Inc., is a management company which contracts with various independently owned long-term care facilities, including Bayview, to provide management services.

In 2000, Almeida applied for and obtained a job as a unit secretary with Bayview. While performing that job, she continued to work on a periodic basis as a nurses assistant with Bayview on a per diem basis. In January 2003, Darrly LeCours was hired as the Adminstrator of Bayview. In that same year, Almeida resigned her position as unit secretary and accepted full-time employment with another employer; however, she continued to work as a per diem nurses assistant at Bayview.

A few months later, Almeida indicated her interest to Bayview’s Director of Nursing Susan Barnard in returning to work full-time at Bayview. Bayview rehired Almeida as a full-time nurses assistant. Later, Bayview reassigned her to an open unit secretary position following Almeida’s re-application for the position.

Almeida had taken several FMLA qualifying leaves during her employment tenure with Bayview. In 1999, she took intermittent FMLA leave to care for her daughter. Bayview had no issue with the leave. In 2004, Almeida took intermittent FMLA leave again, without objection from Bayview, to care for her mother. In early 2005, Bayview again granted permission for Almeida’s FMLA leave to care for her fiancée. During the summer of 2005, she once again took FMLA leave (this time for three months) to have bunions removed from her foot. Almeida claimed that Bayview wanted her to return to work earlier than her doctor had recommended and that Barnard gave the receptionist at Almeida’s doctor’s office “a really hard time” about how soon she could return to work. Shortly after returning to work from this three month leave, Almeida ended up taking an additional day of FMLA leave because of her mother’s hospitalization.


Almeida again sought FMLA leave in March 2006. She approached Barnard and indicated that she would need medical leave for upcoming surgery to have bunions removed from her other foot. According to Almeida, Barnard asked, “Does this mean you’re going to take another three months off?” Barnard did not deny making this statement. Following their meeting, Barnard sent a letter to Almeida stating in part:

Yesterday you advised me that you were planning on elective surgery on April 6, 2006. You became eligible for your first Family Medical Leave on September 28, 2004 to take care of your mother. Subsequently, you received additional FMLA time for yourself for your foot surgery and for the care of your significant other. Upon calculation of lost time due to FMLA, it has been determined that until September 28, 2006, you have five weeks of FMLA time left available to you per federal law guidelines. Please be advised that any time taken beyond the five weeks of remaining leave between now and September 28, 2006 will result in loss of benefits and termination of employment under the law.

Four days after sending the letter, Bayview terminated Almeida’s employment. Almeida had not even had a chance to complete her FMLA paperwork for the requested leave. At some point near her termination, Bayview called Almeida in to meet with Barnard and LeCours. During this meeting, LeCours asked her if she was happy with her job.

Almeida responded, “I am not that happy with my job” because she was restricted to 30 hours per week as a Unit Secretary. Almeida told LeCours that she felt that the work required more than 30 hours per week and that she “can’t get the job done” without working additional hours. Almeida had been issued a written warning on September 19, 2005 for working over 30 hours in a week without prior permission from a supervisor. Almeida then added, “All around I love my job.” LeCours allegedly stated, “Well, we’re going to have to let you go because you’re not happy.” LeCours told Almeida that she had a “negative attitude.” Almeida asked, “Overall job performance-wise, what am I not doing to lead to this?” and LeCours responded, “Oh, nothing.” Almeida asked, “You’re getting rid of me because I’m not happy?” and LeCours said, “Yeah, but don’t worry. I won’t fight unemployment. I know you need a paycheck.”

Approximately one month following Almeida’s termination, Bayview asked LeCours to resign from his position because he was not showing up at work, was having inappropriate relationships with people at work, was swearing at staff and was running a second business out of Bayview’s premises.

Following her termination, Almeida brought suit against Bayview and Athena alleging, among other claims, an FMLA interference claim and an FMLA retaliatory discharge claim. Defendants Bayview and Athena, after a period for discovery, moved for summary judgment on her claims.

Initially, Athena argued that it did not employ Plaintiff and therefore could not be liable to her pursuant to her FMLA claims. The district court indicated that under either the single or joint employer doctrines, Athena could be liable to the Plaintiff. “A single employer situation exists where two nominally separate entities are actually part of a single integrated enterprise so that, for all purposes, there is in fact only a single employer.” Clinton’s Ditch Coop. Co., Inc. v. NLRB., 778 F.2d 132, 137 (2d Cir.1985), cert. denied, 479 U.S. 814, 107 S.Ct. 67, 93 L.Ed.2d 25 (1986), quoting NLRB v. Browning-Ferris Indus. of Pa., Inc., 691 F.2d 1117, 1122 (3d Cir.1982). “The single employer standard is relevant when separate corporations are not what they appear to be, that in truth they are but divisions or departments of a single enterprise.” Clinton’s Ditch Coop. Co., Inc. v. NLRB., 778 F.2d 132, 137 (2d Cir.1985), cert. denied, 479 U.S. 814, 107 S.Ct. 67, 93 L.Ed.2d 25 (1986), quoting NLRB v. Deena Artware, Inc., 361 U.S. 398, 402, 80 S.Ct. 441, 443, 4 L.Ed.2d 400 (1960).

Courts look to four factors when determining whether two employers are functioning as a single employer: (1) interrelated operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership.

Liability could also be established through a joint employer relationship. The factors relevant to determining joint employer status are “whether the alleged joint employer (1) did the hiring and firing; (2) directly administered any disciplinary procedures; (3) maintained records of hours, handled the payroll, or provided insurance; (4) directly supervised the employees; or (5) participated in the collective bargaining process.” AT & T v. NLRB, 67 F.3d 446, 451 (2d Cir.1995).

Both parties alleged a number of factors supporting their arguments for and against Athena’s liability. The district court found most significant LeCours’ deposition testimony that Athena’s Director of Operations Ilene Berkon-Cardello approved Plaintiff’s termination, and that the standard procedure in terminating a Bayview employee was to first seek Athena’s approval. A key factor in the single employer test is centralized control of labor relations as shown by entities sharing policies concerning hiring, firing, and training employees, and in developing and implementing personnel policies and procedures. This factor led to the court denying Defendants’ motion for summary judgment as to Athena’s lack of liability.

Noting that the Plaintiff had brought both FMLA interference and FMLA retaliation claims, the district court provided a succinct explanation of the difference between the two types of claims. FMLA retaliation claims include employer intent as a material element of proof. FMLA retaliation claims are thus evaluated pursuant to the burden shifting formula articulated in McDonnell Douglas Corp. v. Green. An FMLA interference claim, in contrast, does not require a showing of intent to establish the claim. The plaintiff need only prove that the employer impeded, in some manner, the plaintiff’s exercise of her FMLA rights.

Defendants main argument was that Almeida’s FMLA retaliation claim lacked any proof of a nexus between her protected activity under the FMLA and her termination beyond the mere coincidence of timing. The district court, however, found the temporal proximity (five days following her FMLA leave request) to be particularly compelling in this case and noted that other evidence of retaliation existed in the case. Of interest to the court was Barnard’s response to Plaintiff’s request for FMLA leave for surgery on her other foot: “Does this mean you’re going to take another three months off?” Although the statement/query was subject to various interpretations, any doubt was removed by Barnard’s letter to Plaintiff on the following day:

Upon calculation of lost time due to FMLA, it has been determined that until September 28, 2006, you have five weeks of FMLA time left available to you per federal law guidelines. Please be advised that any time taken beyond the five weeks of remaining leave between now and September 28, 2006 will result in loss of benefits and termination of employment under the law.

Bayview’s termination of Plaintiff four days following the letter emphasizes the negative connotations contained therein. In effect, Bayview prevented Plaintiff from even formally filing for FMLA leave. The FMLA protects attempts to exercise rights under the statute which would bring informing one’s supervisor of one’s intent to use FMLA leave under its purview.

Defendants challenged Almeida’s interference claim as merely a restatement of her FMLA retaliation claim and that it should be therefore dismissed. The court determined, however, that Almeida had met the elements of a prima facie case and her claim would survive. 1) Almeida was an eligible employee under the FMLA as she had taken FMLA leave on several previous occasions; 2) the defendant was an employer under the FMLA; 3) Almeida was entitled to leave under the FMLA as Bayview had indicated she had five weeks remaining and had approved FMLA leave previously for surgery on the other foot; 4) she gave notice to the defendant of her intention to take leave by contacting Barnard; and 5) the defendant denied her rights to which she was entitled by the FMLA by firing her and preventing the use of FMLA leave.

In this case, the employer’s biggest mistake was terminating the employee five days after she requested FMLA leave for a condition that had been previously approved for FMLA leave in the past. The employer attempted to manufacture a “bad attitude” justification for the termination but did a poor job of that as well. Indicating in a letter that the employee risked termination if she exceeded her remaining FMLA leave time was not a mistake; however, when coupled with the subsequent termination it became an inseparable chain of events tending to prove FMLA retaliation and interference.

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Kimberly Wysong work at The Dow Chemical Company’s Hanging Rock facility as an Operating Technician. In that position, her job was to place raw materials into a laminating machine. The raw material was delivered to her in pallets from the warehouse, and a forklift was used to load the laminating machine. Wysong would operate the forklift on occasion to do this. The laminating machine had moving parts and could be dangerous to operate if all safety precautions were not followed.

In 2001, Wysong took 464 hours of paid medical leave (the equivalent of approximately 58 work days or 11.6 work weeks). In 2002, she took 783.5 hours of paid medical leave (the equivalent of approximately 98 work days or 19.6 work weeks). She took leave during these two years for several conditions including: chronic neck and groin pain, a hernia operation, mononucleosis, a hysterectomy, and caring for a sick child. Dow paid her her full pay for these leaves.

On February 7, 2003, Production Leader Dwight Miller gave Wysong a “Letter of Concern.” In this letter, he indicated that Wysong had exhausted all of her paid medical leave and that if she needed additional leave before accruing more leave time, she would have to use either vacation time or unpaid leave. Miller also required Wysong to notify him and obtain his approval prior to any further absences, including planned medical procedures.

Ten days later, Miller gave Wysong a “Last Chance Letter” indicating that Wysong had reported to work late without prior notification and Dow would terminate Wysong’s employment for any future issues.

On May 13, 2003, Wysong told the plant nurse that she was experiencing neck pain. Wysong, however, did not request any time off from work as a result. Apparently on the watch list, the nurse reported Wysong’s complaint to the plant’s Environmental Health and Safety Directory, Troy Dehoff. Dehoff ran and told Miller. Miller hurried to inform Dr. Teter, Dow’s Regional Medical Director.

Dr. Teter took the information and placed Wysong on work restrictions: no lifting, pushing, pulling or tugging anything over five pounds. Teter did this because of Wysong’s current neck trouble as well as her previous time off work “may have been due to [a] previous neck [problem]. Miller “determined” that he had no work for Wysong that would comport with Teter’s work restrictions, so he sent her home.

On May 15, 2003, Miller sent a letter to Wysong informing her that “her request” for FMLA leave had been approved bu that she only had three more days of FMLA leave available to her. Wysong took the letter to Human Resources Partner Tom Hutson and told him that she had not requested any leave, let alone FMLA leave. Hutson removed the “request” language and sent the letter back to Wysong informing her that Dow had placed her on FMLA leave.

Wysong’s case required review by Dow’s Medical Review Board. The Board required Wysong to pass a functional capacity exam (“FCE”) as a condition to returning to work. Such a test is used to determine if an employee can physically perform her job duties. Wysong signed a release permitting Dow to obtain her medical records. Dr. Teter reviewed them and found a note from one of Wysong’s treating physicians that she was possibly exhibiting “drug-seeking behavior.” Teter took this to mean that Wysong was “drug dependant.”

From that Teter unilaterally determined that Wysong could not take the FCE unless she discontinued taking her pain medication for a two week period. Teter was concerned about safety risks associated with taking such medication and operating a forklift and laminating machine as well as whether the FCE would be valid if taken under such medication. On the advice of her physicians, Wysong refused to stop taking her pain medication.

Dow refused to let her take the FCE and placed her on unpaid leave “pending a release to work without restrictions” from both her physician and Dow’s medical department. Needless to say, Wysong did not obtain these releases and was terminated. Wysong sued Dow alleging violations of the FMLA. The district court granted summary judgment to Dow and Wysong appealed to the Sixth Circuit Court of Appeals.

Judge Gregory L. Frost for the Southern District of Ohio determined that Wysong’s complaint only stated a retaliation claim under the FMLA and refused to consider Wysong’s FMLA interference claim. Frost granted summary judgment for Dow as Wysong did not make out her prima facie case of retaliation. On appeal, Wysong claims that Frost erred in refusing to analyze her FMLA claim under the interference theory.

The appeals court quickly dispatched with the lower court’s ruling that Wysong had never brought an interference claim: “A defendant looking at Wysong’s complaint would be on sufficient notice that she was broadly alleging violations under 29 U.S.C. ß 2615, and that her FMLA claim could encompass either the interference theory, the retaliation theory, or both theories. Contrary to the district court’s characterization, Wysong has never alleged a new claim since filing her complaint. The claim has always been the same one: that Dow’s actions violated the FMLA.”

From there the appeals court analyzed Wysong’s interference claim: “The FMLA prohibits qualifying employers from “interfer[ing] with, restrain[ing], or deny[ing] the exercise of or the attempt to exercise, any right provided under th[e] [FMLA].” 29 U.S.C. ß 2615(a)(1).

To prevail under the interference theory, the employee must establish the following:

(1) he is an “[e]ligible employee,” 29 U.S.C. ß 2611(2);
(2) the defendant is an “[e]mployer,” 29 U.S.C. ß 2611(4);
(3) the employee was entitled to leave under the FMLA, 29 U.S.C. ß 2612(a)(1);
(4) the employee gave the employer notice of his intention to take leave, 29 U.S.C. ß 2612(e)(1); and
(5) the employer denied the employee FMLA benefits to which he was entitled. Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir.2003).

The question for the court’s review became whether the employer denied Wysong FMLA benefits to which she was entitled. Wysong argued that an alternate fifth element to an interference theory claim is that the employer “somehow used the leave against her and in an unlawful manner, as provided in either the statute or regulations” and cited Bradley v. Mary Rutan Hosp., 322 F.Supp.2d 926, 940 (S.D.Ohio 2004). The appeals court found that this interpretation of the fifth element did not conflict with the Cavin case but added depth to the fifth element set forth in Cavin. The reviewing court then cited 29 C.F.R. ß 825.220(c) – “employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions.” In the case of Brenneman v. Medcentral Health Sys., 366 F.3d 412, 422 (6th Cir.2004) and Pharakhone v. Nissan N. Am., Inc., 324 F.3d 405, 408 (6th Cir.2003), the Sixth Circuit had previously used this negative factor analysis in parsing interference claims. In short, “if an employer takes an employment action based, in whole or in part, on the fact that the employee took FMLA-protected leave, the employer has denied the employee a benefit to which he is entitled. ”

Along those lines, Wysong’s view of the case was that she was eventually terminated for taking FMLA leave in 2002. Wysong’s chain of events leading to her termination began with Teter’s writing work restrictions based, in part, on his knowledge that she had taken significant leave in 2002. The work restrictions prevented her from working and she could not go off all pain medications to take the FCE. As a result, she was not reporting to work and was thus terminated. Dow used the 2002 leave against her and in an unlawful manner (her eventual termination).

As the cat was already out of the bag, Dow had to acknowledge that Dr. Teter took into account Wysong’s previous absences when he issued the restrictions and required her to take the FCE without pain medications. Dow’s argument on appeal was that Teter did not solely base his restrictions on Wysong’s 2002 leave time. The appeals court quickly shot down that argument: “employers cannot use the taking of FMLA leave as a negative factor in employment actions.” 29 C.F.R. ß 825.220(c).

Dow made numerous other attempts at arguments including one that Dr. Teter was simply trying to protect Wysong from further neck injury. However, Teter wrote his restrictions with no idea why Wysong had missed work in 2002.

The court concluded that “the initial issuance of the severe restrictions set in motion an unbroken chain of events (as set forth above) culminating in her termination” and thus Dow had used her taking of leave in 2002 against her and in an unlawful manner.
The court also considered Wysong’s involuntary-leave theory claim: Dow violated her FMLA rights by forcing her to take her last three days of FMLA leave when she did not need to do so. The court noted that employees have involutary-leave claims against their employers when they are forced to take FMLA leave when they do not have a qualifying serious health condition. The claim ripens only when the employee seeks FMLA leave at a later date and the leave is unavailable as a result of the involuntary leave. As this did not happen in Wysong’s case, the appeals court affirmed the district court’s dismissal of this claim.

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Sarah Nocella worked for Basement Experts at its Maumee, Ohio location. She began her employment there on December 9, 2002 and worked until her termination on October 24, 2005. In January 2005, Nocella informed her employer that she was pregnant. On July 15, 2005, Nocella went on leave pursuant to the Family Medical Leave Act . She requested 10 weeks of leave with a return to work date of September 28, 2005.

Immediately prior to her leave, Nocella worked as the Maumee facility’s Office Manager. Her duties as Office Manager included supervising Rebecca Potts and Shelly Timofeev. Nocella also claimed to have supervisory duties over other employees in the company’s Detroit, Grand Rapids and St. Louis locations. Basement Experts disputed this claim. A small part of Nocella’s duties included working as an assistant to her immediate supervisor, Kraig Mackett. While Nocella was on leave, Mackett resigned his employment with Basement Experts and James Quigley (owner) decided not to replace Mackett but to take on Mackett’s work himself. Potts and Timofeev took on Nocella’s duties while she was on FMLA leave.


On September 19, 2005, Quigley sent a letter to Nocella telling her that as a result of Mackett’s resignation and his decision to absorb Mackett’s duties himself, Nocella’s position as Office Manager had been eliminated. Potts and Timofeev would continue to perform Nocella’s other duties that did not involve assisting Mackett. Quigley also stated in his letter that he would find another position for Nocella upon her return to work. Quigley informed Nocella that she was to return to work after the expiration of 12 weeks instead of the previously agreed upon 10 weeks; however, Quigely “miscalculated” the end of 12 weeks as October 17, 2005 instead of October 7, 2005. In essence, Nocella was on leave for more than 13 weeks. Nocella did try to return to work on October 3, 2005 but was prevented from doing so by Basement Experts.

When Nocella did finally return to work, Quigley assigned her a project under the company controller that required reviewing all of the company’s employees’ records to ensure compliance with an October 2005 investigation by the U.S. Department of Labor which had found the company’s employees’ records to be lacking I-9 information. Quigley assigned Nocella to work in the accounting department backroom without access to a computer or telephone at her desk.

On her fourth day back from leave, Nocella received a letter from Quigley stressing to her the importance of her I-9 compliance work as well as the urgent need for her to complete this work in the accounting backroom. Quigley’s assistant reinforced this by stating that “people were going to start losing their jobs” if Nocella dared to attempt working at her former desk instead. Upset with Quigley’s puerile behavior, Nocella left work to see her father. Defendants claimed that Nocella was seen crying, shredding documents and gather her personal effects.

Nocella returned to work the following day, but Quigley’s messenger informed her that Quigley wanted Nocella to go home and to return to work on Monday at 11 a.m. to meet with Quigley. Nocella returned to meet with Quigley, his assistant and another employee. Nocella denied shredding any documents at this meeting but Quigley fired her for doing so, as well as for completing no work since her return from leave, and that she had already quit on Thursday. Nocella’s remaining personal effects were mailed to her after her termination.

Dissatisfied with her termination, Nocella filed suit alleging violations of her FMLA rights. After a period for discovery, Basement Experts moved for summary judgment.

To prevail on her FMLA entitlement claim, Plaintiff must show that (1) she was an eligible employee; (2) Defendant was an employer covered by the FMLA; (3) Plaintiff was entitled to leave under the FMLA; (4) she gave her employer notice of her intent to leave; and (5) the employer denied her FMLA benefits or interfered with FMLA rights to which Plaintiff was entitled.

The only element in contention was whether defendants denied or interfered with Plaintiff’s right to reinstatement “to an equivalent position with equivalent employment benefits, pay, and other terms and conditoins of employment. Defendants argued that Plaintiff was not entitled to reinstatement, and, in the alternative, she was reinstated to an equivalent position. Regarding their claim that Plaintiff was not entitled to reinstatement, Defendants argued that they were under no obligation to return Plaintiff to work because her position was eliminated while she was on leave. Defendants cite to the following FMLA regulation for support:

If an employee is laid off during the course of taking FMLA leave and employment is terminated, the employer’s responsibility to continue FMLA leave, maintain group health plan benefits and restore the employee cease at the time the employee is laid off, provided the employer has no continuing obligations under a collective bargaining agreement or otherwise. An employer would have the burden of proving that an employee would have been laid off during the FMLA leave period and, therefore, would not be entitled to restoration. 29 C.F.R. § 825.216(a)(1)

The Northern District of Ohio quickly dispatched with Defendants’ arguement by noting that Defendants had instructed Plaintiff to return to work and thus were never relieved of their duty to reinstate her to an equivalent position. The court went further and stated that even if Plaintiff was laid off and her employment was terminated while she was on leave, “Defendants have not met their burden of showing that Plaintiff would have been laid off had she not taken the FMLA leave.” The court noted that much of Plaintiff’s duties were taken on by her underlings which begs the question of why was Plaintiff’s position eliminated and not the position of one of her reports. A genuine issue existed as to whether Plaintiff’s position was eliminated because Mackett left or simply because she was on leave at the time Mackett left.

Defendants’ next argument was that it did in fact return Plaintiff to an equivalent position after the end of her leave. The court noted that Plaintiff had no supervisory authority in her new backroom position and was unconvinced by Defendants’ argument that Plaintiff was still performing “administrative/clerical” work in the same building for the same number of hours, stating that this was “hardly a standard by which ‘equivalency’ can be measured.”

Concerning Plaintiff’s FMLA retaliation claim, Defendants disputed that there was any causal connection between the protected activity and plaintiff’s termination. The district court put a strong emphasis on the temporal proximity between Plaintiff’s return from her FMLA leave and her firing (about a week) as evidence of a causal connection. The court also pointed to the 8-9 week period between the beginning of Plaintiff’s leave and the elimination of her position as well as the 5 week span between the elimination of her position and her final firing as evidence of a causal connection. Other evidence of a causal link included the letter unilaterally lengthening her leave; Defendants’ rejection of Plaintiff’s attempt to return to work on October 3; and Defendant’s refusal to let Plaintiff return to work immediately prior to her firing. All of these instances reflected a consistent effort to keep Plaintiff from returning to work.

The court spent little time on Defendants’ reasons for firing the Plaintiff: (1) she left work early and without notice on October 24, 2005 and (2) she shredded documents. The court seemed to credit Plaintiff’s explanation that she denied shredding documents and that she did not quit as she had left personal effects at work. Perhaps the district court felt that pretext existed as a result of the other questionable actions of the employer which reflected a discriminatory intent.

Basement experts clearly did not proceed in a lawful manner when it came to terminating Nocella’s employment. They left a trail of evidence reflecting a clear intent to eliminate her position most likely as a result of her taking FMLA leave.

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The appeals court started its analysis with an explanation of the difference between an interference claim and a retaliation claim. To establish an interference claim, Campbell had to demonstrate: (1) that she was entitled to FMLA leave, (2) that some adverse action by the employer interfered with her right to take FMLA leave, and (3) that the employer’s action was related to the exercise or attempted exercise of her FMLA rights.

To make out a prima facie retaliation claim, Campbell must show that: (1) she engaged in a protected activity; (2) Gambro took an action that a reasonable employee would have found materially adverse; and (3) there exists a causal connection between the protected activity and the adverse action. To satisfy the third prong under a retaliation theory to be a showing of bad intent or a retaliatory motive on the part of the employer.

FMLA Retaliation claims are evaluated pursuant to the burden shifting approach of McDonnel Douglas. For interference claims, the employer bears the burden of proof on the third element (that the employer’s action was related to the exercise or attempted exercise of her FMLA rights) once the plaintiff has shown her FMLA leave was interfered with.

The appeals court explained further differences between interference and retaliation claims beyond burden of proof differences. Interference and retaliation claims also differ in terms of the timing of the adverse action. In an interference claim, in order to show that some adverse action by the employer interfered with the employee’s right to take FMLA leave, the employee must show that she was prevented from taking the full 12 weeks’ of leave guaranteed by the FMLA, denied reinstatement following leave, or denied initial permission to take leave.

A retaliation claim differs in that it may be brought ” when the employee successfully took FMLA leave, was restored to her prior employment status, and was adversely affected by an employment action based on incidents post-dating her return to work.”

Based on these explanations of the two claims, it would seem that Campbell was limited to bringing a retaliation claim as the district court ruled when dismissing Campbell interference claim; however, the appeals court found otherwise: ” When, as is the situation before us, the employer cites only factors predating the employee’s return to work to justify the adverse action, the plaintiff is not foreclosed from bringing an interference claim. To hold otherwise would create a perverse incentive for employers to make the decision to terminate during an employee’s FMLA leave, but allow the employee to return for a brief period before terminating her so as to insulate the employer from an interference claim.”

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To make a prima facie case of reprisal under the FMLA, an employee must show: (1) protected employee action; (2) adverse action by an employer either after or contemporaneous with the employee’s protected action; and (3) a causal connection between the employee’s action and the employer’s adverse action. Court held that the County’s stated reason for Plaintiff’s termination-her difficulty in getting along with coworkers-is documented beginning in 1997 (two years prior to Plaintiff’s extended FMLA leaves). So termination was not in retaliation for FMLA leaves.

McWilliams v. Jefferson County, 463 F.3d 1113 (CA 10 2006).

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