Employment Law Daily No monetary loss, more leave than employee was entitled mean no actionable FMLA claim
Monday, January 4, 2016

No monetary loss, more leave than employee was entitled mean no actionable FMLA claim

By Lisa Milam-Perez, J.D. A registered nurse at a group nursing home facility was unable to revive her suit alleging that her employer interfered with her FMLA rights, discriminated against her for taking FMLA-protected leave, or discharged her in violation of public policy. Affirming summary judgment in the employer’s favor, the Eighth Circuit concluded, for one, that the employee had no actionable claim of discrimination based on a month-long paid suspension because she suffered no monetary loss, and the FMLA limits damages to actual monetary loss (Hasenwinkel v. Mosaic, December 29, 2015, Colloton, S.). Lots of leave. The employee had taken FMLA leave on seven different occasions over the course of her employment, for several surgeries or other medical procedures and for chronic depression. She also took intermittent leave for physical therapy and to care for her father. Although her express requests for leave were never rejected, the employee contended that she was forced to return from leave on one occasion and was punished for having taken leave. That incident was following a two-day absence for depression, which she believed was part of her FMLA leave. But there was no record that she sought permission for this absence, and her depression-related FMLA leave ended two weeks earlier. The employee was ordered to return to work and, upon return, she received an informal evaluation citing her unapproved absences (and also a lack of follow-through with patients). The next month, she received her formal annual review, which noted she “needs improvement” in one category (out of 40). She contended the negative informal evaluation and unsatisfactory rating in her formal review were in retaliation for taking FMLA-protected leave, and were designed to induce her to quit. She also was subject to three formal corrective actions over the course of her employment; in one instance, she was suspended for a month (initially without pay, but the employer changed it to a paid suspension and reinstated her with backpay) for failing to report mold at the group home. She also alleged that other nurses “ganged up” on her and that her supervisors subjected her to unfair scrutiny and higher standards, as well as personal slights such as not inviting her to lunch—all because of her numerous FMLA leaves. Finally, the employee had FMLA leave for neck surgery and never returned to work. She exhausted her FMLA benefits, was granted an additional 12 weeks (to which she wouldn’t have been otherwise entitled) when the employer fortuitously altered its method for calculating FMLA accrual around this time. After another 90-day medical leave of absence, the employee was still unable to work, so she was terminated. The district court granted summary judgment to her employer on the FMLA suit that ensued; the Eighth Circuit affirmed. No FMLA interference. The employee asserted that the employer interfered with her FMLA rights when it denied her leave when she went out for two unapproved days for depression. Assuming that the employee gave proper notice of her need for leave, the appeals court found summary judgment was proper at any rate because she had exhausted her leave benefits. In fact, the employee received more than three times the amount of leave required by law prior to her termination, the court pointed out, rejecting the notion that she had been denied any entitlement under the statute. No FMLA discrimination. The employee’s FMLA discrimination claim was based on her termination, her one-month suspension, and her “generally unpleasant treatment” at the hands of her supervisors; in fact, she asserted that her real reason for not returning to work was the hostile work environment she suffered. Regardless of whether this was true, the fact was the employee was physically incapable of performing her job. As she conceded, she wasn’t sure she would ever be able to return to her nursing career following her surgery—she hadn’t looked for work since leaving the employer and she was deemed 80 percent disabled by the Social Security Administration. Thus, she could not stake her discrimination claim on her discharge. Furthermore, such “petty slights or minor annoyances,” without evidence of tangible harm, were not actionable in and of themselves, as the FMLA does not impose “‘a general civility code for the American workplace,’” the appeals court added. As for her suspension with backpay, even assuming such an adverse action could deter an employee from exercising her rights under the Act, an FMLA plaintiff must show actual monetary loss to recover, and she offered no evidence of a tangible loss actually incurred and directly caused by her suspension. Although her appellate brief noted that “missing a paycheck . . . can often spell disaster for employees,” the employee acknowledged that she was made whole and presented no evidence any such disaster befell her. Public policy angle fails. The employee also brought a state-law wrongful discharge claim arising under the FMLA as the public policy warranting an exception for at-will employment under Iowa law. The state high court has yet to decide whether a federal statute (rather than Iowa law) can supply a public policy to support a wrongful discharge action. But insofar as the FMLA establishes a public policy that might be protected by the Iowa common law, the federal statute also provides employees with a remedy, and this common-law claim only protects employees who would otherwise be without a remedy. Finally, because the employee presented insufficient evidence that she was discharged in violation of the FMLA, her termination did not undermine a clearly defined public policy, so the appeals court did not have to decide whether the FMLA preempts state-law claims based on retaliation for exercising rights under the Act.

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