Wednesday, September 28, 2011

Federal Court Holds Not Returning Employee's Calls While on FMLA Leave May Amount to Retaliation

A case catching a lot of attention right now involves a decision out of a federal court in Pennsylvania where it was found that an employer's failure to return an employee's telephone calls while she was on FMLA leave is indirect evidence of retaliation. 

The plaintiff in the case took FMLA leave that was expected to last approximately two months.  The employee claimed that, during her leave, she and her husband regularly provided her direct supervisor with leave updates.  However, her supervisor often failed to return the calls.  In early November, she provided a return to work certification clearing her return for November 13.  She also contacted her supervisor to ask for a "modest" extension through November 13, but the supervisor again did not return the call.  Instead, the Medical Center sent the employee a letter informing her that her employment had been terminated because she failed to return to work on November 6 when her FMLA leave allotment had been exhausted.  

Obviously behavior like that from an employer prompts an employee to seek legal counsel because they understandably feel that their termination was unlawful.  The employee then filed an FMLA retaliation, interference, disability discrimination and state law claim.  The trial court held that the supervisor's failure to return phone calls was evidence of "an antagonistic attitude toward the employee, particularly where - as here - such refusal began after the employee initiated FMLA leave, and continued despite regular communications from the employee."  As such, it could be used as evidence of retaliation.  

The plaintiff's interference claims ultimately failed because the plaintiff could not show that she could return to work at the end of the 12-week period.  

The case is Kathleen Hofferica v. St. Mary Medical Center, Case No. 10-6026

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