Pension & Benefits News Employee denied transfer after taking intermittent FMLA leave didn’t suffer materially adverse action
Friday, March 13, 2020

Employee denied transfer after taking intermittent FMLA leave didn’t suffer materially adverse action

By Pension and Benefits Editorial Staff

An employee who was granted intermittent FMLA leave to care for her young son, and was subsequently denied her request to move to a position on a different team due to a performance evaluation that rated her attendance subpar, failed to advance her FMLA claims to trial since she couldn’t establish that she suffered a materially adverse action. Granting the employer’s motion for summary judgment, a federal district court in Indiana ruled that it was not enough that she subjectively preferred the other position, and she failed to show that the distinction between the two jobs was significant enough that being placed in one as opposed to the other would deter a reasonable person from exercising their rights under the FMLA.

IT analyst. In 2012, the employee was hired as an application business analyst in the IT group of a healthcare organization that included hospitals, doctors’ offices and other resources. She worked on the support center team, where she provided technical support for the employer’s physician practices.

Intermittent FMLA leave. Shortly after she was hired, her young son was diagnosed with a serious medical condition that required 24-hour care. Once she became eligible, she was granted her request for intermittent FMLA leave, which she took when she needed to take her son to appointments or be with him during the day. She was also approved for an alternate work schedule and beginning in 2016, was allowed to telecommute three days per week.

Seeks transfer to different team. In January 2017, she applied for a transfer to a different position that had the same title and pay, but was on the ambulatory/home health team, which meant she would also support the home health practices instead of just focusing on physician practices. The position also required an additional home health software certification that she did not have.

Denied due to lackluster attendance. As part of the internal transfer process, the employee’s supervisor completed a performance evaluation which included ratings in four areas, including attendance. Though generally positive, her supervisor rated her as "needs improvement" in the attendance category, though she later claimed to be referring to non-FMLA related absences. The employee was subsequently told that she would not be interviewed for the position because of the evaluation and it was filled by a less-qualified candidate.

Was there a "material adverse action"? At issue was whether the employer took a "materially adverse action" against the employee because she took FMLA leave. Materially adverse actions "include any actions that would dissuade a reasonable employee from exercising his rights under the FMLA." Here, the employee did not dispute that she would not have received higher pay, but instead claimed that the new position was "more desirable" because it provided the opportunity for a different certification and to work on a new team, both of which would "have improved her promotional opportunities."

Objective standard. However, her preference for the new position was not relevant since an adverse action is evaluated on an objective standard, not subjective feelings. Instead, she needed to provide evidence that would permit a finding that a reasonable person in her circumstances would find the action to be materially adverse. And in that regard, she failed to cite to the record at all, which by itself was fatal to her claim.

No promotional benefit shown. While she cited the chance to work on a new team as one reason why the job was more desirable, she offered no reason why that new team would be objectively preferable to her old one or how it would have improved her promotional opportunities. She also failed to explain any significance to obtaining a new certification for "home health" for the new position, which appeared equivalent to her current "ambulatory" certification. For example, she did not indicate whether this additional certification was sought-after by employees, whether IT analysts who held that certification were more likely to be promoted, or whether it had any value outside the position she sought. She also did not indicate that she could not have received the same or a similar certification in her existing position.

In short, all that she said about the certification was that she would have had to obtain it, without any explanation for how that would have been advantageous. Without any evidence "to distinguish this from the sort of routine training that might accompany a purely lateral transfer that would not be actionable, a jury could not find that this would be a significant enough change to constitute a materially adverse action." With no explanation as to why the certification was significant, she failed to show that losing the opportunity to obtain it would be adverse enough to a reasonable person to deter them from exercising their rights under the FMLA. Thus, she could not prevail on her claim that the employer interfered with her FMLA rights or retaliated against her for taking leave.

SOURCE: Luna v. Franciscan Alliance Inc., (N.D. Ind.), No. 3:17-cv-00919-JD, February 18, 2020.

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