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Failure to Promote is Viable Basis for FMLA Discrimination Claim

On Behalf of | Nov 15, 2018 |

A federal district court, in Browett v. City of Reno, has determined that a plaintiff’s claim of discriminatory interference under the Family and Medical Leave Act (“FMLA”) could be based on his employer’s failure to promote him after he had complained about not being allowed to use his accrued sick leave as FMLA leave.

Law. It is unlawful for an employer to: (i) interfere with the exercise of (or attempt to exercise) any right provided by FMLA; or (ii) discriminate against an individual for opposing any unlawful practice under FMLA.

Background. The plaintiff, who had worked as a police officer for the City of Reno in 2005, took sick leave in 2015 to care for his newborn child and wife, both of whom were experiencing medical issues related to the pregnancy. During this leave, the plaintiff’s employer contacted him to explain that he would have to use vacation leave instead of his accrued sick leave to “bond” with his newborn baby.

The employer subsequently designated the plaintiff’s leave as FMLA leave but explained that because he could not use sick leave, the FMLA leave would be counted against his vacation or other paid leave time. The plaintiff objected to this designation by explaining his wife’s medical condition and again requested to use his accrued sick leave. The employer ultimately allowed the plaintiff to use his accrued sick leave, but stipulated that it would run his FMLA leave concurrently with his sick leave.

When the plaintiff returned to work, he applied for a promotion. During his interview, he was questioned about his use of FMLA leave and criticized about how he had handled the situation with the employer. The plaintiff did not receive the promotion and the employer acknowledged that he was rejected because of the manner in which he had handled the FMLA leave issue.

In response, the plaintiff sued the employer in federal district court alleging FMLA discrimination based on the employer’s decision to deny him a promotion because of his opposition to how it had managed his FMLA leave and FMLA interference based on his exercise of FMLA rights i.e., using leave. The employer responded by requesting that the case be dismissed as a matter of law because there was no evidence that it had engaged in FMLA discrimination or interfered with the plaintiff’s FMLA rights.

District Court. In reviewing the matter, the court found that the plaintiff’s complaint to the employer about the use of sick leave was a protected activity under FMLA and that the denial of promotion was a resulting adverse employment action taken by the employer. In particular, the court explained that there was ample evidence that the employer’s admitted reason for not promoting the plaintiff was his complaint about not being allowed to use sick leave.

With respect to the plaintiff’s FMLA interference claim (i.e., that the employer had initially tried to prevent him from using sick leave), the court found that there was not enough evidence to support a finding that the employer had interfered with the plaintiff’s FMLA rights. The court reasoned that there could be no FMLA interference claim because the employer’s error regarding the plaintiff’s available leave was corrected and the plaintiff was not prevented from using the FMLA leave to which he was entitled.

Employer Takeaway. In view of Browett, employers are advised to avoid, when making promotion decisions, any discussion of their employees’ FMLA leave. Employers that do otherwise, expose themselves to a risk of liability under FMLA.