Employment Law Daily Initially misclassifying officer’s FMLA leave, requiring psych exam not materially adverse acts to support retaliation
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Wednesday, May 2, 2018

Initially misclassifying officer’s FMLA leave, requiring psych exam not materially adverse acts to support retaliation

By Marjorie Johnson, J.D.

A police officer who missed work due to migraines and stress following his complaint of sexual harassment against a supervisor, and who subsequently sought FMLA leave to care for his sick wife, did not suffer materially adverse employment actions when he had his FMLA leave initially misclassified so as to deplete his paid sick leave days or when he was required to have a psychological exam to return to work. Affirming summary judgment against his FMLA and ADA retaliation claims, the Seventh Circuit found that none of the acts that he identified would discourage a reasonable employee from exercising his or her rights under these statutes (Freelain v. Village of Oak Park, April 30, 2018, Hamilton, D.).

Misclassified sick leave. After the officer made sexual harassment claims against his female supervisor, he began suffering from migraine headaches, which caused him to seek medical treatment and miss work. After his doctor cleared him to return to full duty, he was advised he would have to first pass a psychological exam, which took several weeks to schedule. During this time, the village misclassified his leave as not being work-related (and therefore counting against this paid sick leave days), but eventually corrected its mistake. During his leave, an outside agency investigated his harassment complaints and found them to be unsubstantiated.

Delayed FMLA approval. He later requested FMLA leave to care for his wife, who had been diagnosed with cancer. By this time his balance of paid sick leave had been depleted and the village had not yet corrected the misclassification, which meant that any leave he took would be unpaid. Thus, at the time, he faced the choice of taking unpaid time off work to help his family or continue working to maintain an income. He was ultimately granted all his FMLA leave and paid for that leave, and his rank remained the same despite his absences.

District court tosses lawsuit. Granting the village’s motion for summary judgment, the district court found that the officer didn’t suffer any materially adverse actions, but was merely a victim of “an unfortunate series of administrative errors and delays in accounting” that resulted in his suffering a temporary loss of pay which forced him to choose between losing more pay and abandoning his sick wife to return to work. On appeal, he argued that three materially adverse actions had been taken: (1) initially misclassifying his sick leave; (2) requiring him to undergo a psychological evaluation; and (3) waiting three months before approving his request to engage in outside employment.

Can “unpaid” leave be retaliatory? The FMLA does not require employers to pay employees for covered leave, instead allowing them to drain an employee’s paid leave. This mattered here, the Seventh Circuit explained, because many of the officer’s arguments were based on his frustration with the village for taking actions that drained his paid leave account. Thus, he was asserting that doing exactly what the FMLA allows—placing an employee on unpaid leave—was unlawful. However, granting unpaid leave cannot constitute a retaliatory adverse action under the FMLA or the ADA without evidence that the employer deviated from its normal paid leave practices and targeted the plaintiff for unpaid leave because he asserted his statutory rights.

Misclassification not adverse. Here, the village’s misclassifications of the officer’s leave time was not materially adverse since it would not have dissuaded a reasonable worker from engaging in protected activity. Though his absences were initially misclassified as “self sick,” which meant that he was paid but that his time off was deducted off from his sick time balance, this diminishing of his paid sick leave was wholly consistent with the FMLA. A reasonable worker would thus not be dissuaded from using FMLA on pain of losing sick days since the statute gives employers the right to do so.

Moreover, there was no evidence that the village acted with malice or recklessness. Rather, the record showed “bureaucratic inertia,” and the officer was eventually made whole for the misclassification by the restoration of sick leave and compensation for the unpaid time he spent on administrative leave after exhausting his sick leave. And while he argued that he still suffered harm because he had no paid leave remaining when his wife was diagnosed with cancer the month after he returned to work, there was no evidence the village knew about his wife’s illness.

Psych exam was permissible. The officer also failed to show the village unlawfully retaliated against him by requiring that he undergo a psychological evaluation before returning to work. Finding the circumstances “fit safely within the bounds of a permissible medical examination,” the court concluded that psychological evaluations are not unusual in circumstances where an employee’s failure to do his job properly could pose a serious risk to the safety of the employee or others. Since there was no indication that the village treated him differently or singled him out unlawfully, it did not act unreasonably by ordering him to undergo a psychological evaluation after an extended leave due to stress-related medical symptoms.

No retaliation “as a whole.” The Seventh Circuit also found that the village’s three-month delay in approving his request for approval of secondary employment was not materially adverse. And insofar as he argued retaliation could be shown by considering all the actions taken against him “as a whole,” the court sill found that a reasonable employee in his shoes would not be dissuaded from taking unpaid leave. While such a claim might survive if he could show “insidious deviations” from the village’s policies or practices, there was no such evidence here.

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