By Dave Strausfeld, J.D. While the FMLA does not explicitly provide for emotional distress and punitive damages, an account manager who alleged his company denied him FMLA leave to visit his pregnant fiancee in the hospital, and then fired him, could pursue a state common law claim for retaliatory discharge that might provide greater damages than those available on his FMLA claim, held a federal district court in West Virginia, denying a motion to dismiss. Under West Virginia law, his common law retaliatory discharge claim could be predicated on the public policy set forth in the FMLA, even if he also had a remedy under the FMLA itself (Vandevander v. Verizon Wireless, LLC, March 7, 2016, Chambers, R.). Allegedly not told of FMLA rights. The account manager alleged his company failed to provide him with information about FMLA leave, and instead told him to take vacation time, to visit his pregnant fiancee in an out-of-state hospital. He also had a son who suffered from certain medical conditions but allegedly was not told about his eligibility for FMLA leave or was denied leave. Ultimately the company terminated him without providing any reason, he said, and he sued under the FMLA and state law. The company moved to dismiss just his state law claims—which were the basis for his request for emotional and punitive damages. FMLA didn’t preempt state claims. The company first argued for straightforward preemption, but contrary to the company’s argument, the FMLA did not preempt the account manager’s state law claims. It made no difference that all the facts supporting his common law retaliatory discharge claim were identical to those supporting his FMLA claim. Congress inserted language into the FMLA indicating its intent not to preempt state law claims, the court explained. Further, although the Fourth Circuit has not addressed the issue, several district courts in the circuit and elsewhere have ruled the FMLA does not preempt state law claims. Common law retaliatory discharge claim viable. The company also contended the account manager could not bring a common law retaliatory discharge claim rooted in the public policy expressed in the FMLA if he was also bringing a claim under the FMLA itself. But again, the court disagreed. The West Virginia Supreme Court of Appeals has never held that a common law retaliatory discharge claim is viable only in the absence of a statutory remedy, the court emphasized. In Williamson v. Greene, West Virginia’s highest court held that a common law claim for retaliatory discharge was viable rooted in the public policy against sex discrimination expressed in the state’s Human Rights Act. Although the plaintiff there was without a statutory remedy, the court offered no indication that absence of a statutory remedy is a condition precedent for bringing a common law retaliatory discharge claim in West Virginia. Accordingly, the account manager could move ahead with his state common law retaliatory discharge claim predicated on the public policy expressed in the FMLA—under which he also was suing. He could also proceed with his claims of negligent and intentional infliction of emotional distress. Because his state law claims survived, so did his complaint’s request for emotional and punitive damages.
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