Atlanta Employment Attorneys Blog
A recent Family and Medical Leave Act dispute is a reminder of the importance of timing. In many FMLA retaliation cases, the matter may come down to whether an adequate link exists between the employee’s use of FMLA leave and the employer’s punitive action, and that existence may depend on exactly how close in time the two events occurred. If you have questions about an FMLA matter and potential retaliation issues, you should contact an experienced Atlanta FMLA retaliation lawyer to discuss your situation.
A recent retaliation case from outside Georgia serves as a reminder that gaps measuring multiple months are often too long to infer that a motive of retaliation caused the adverse employment action.
The employee in that case, L.C., was an account executive for a TV station in southern West Virginia. In February 2022, the executive gave birth to twins. However, during her C-section surgery, part of her urinary system suffered damage. This damage required a follow-up surgery, caused the executive severe pain, and limited her ability to stand, walk, and drive.
By the summer of 2022, the executive remained out of work. When the employer pressed for a return-to-work date in August, the executive could only say “probably… September or October.” The employer terminated the executive by email on August 19.
The executive subsequently sued for, among other things, FMLA retaliation. The courts, however, sided with the employer. As the trial court and the appeals court each explained, the employer’s actions did not violate the FMLA.
In an FMLA retaliation case, the worker needs three essential things. These include the employee engaging in a legally protected activity, the employer taking an adverse employment action against the employee, and a sufficiently strong connection linking the protected activity as the cause of the adverse action.
Both sides (and the courts) agreed that the executive easily cleared the first two hurdles, as she plainly engaged in a protected activity (using FMLA leave) and undeniably experienced an adverse employment action (termination). Where L.C.’s case fell apart, according to the courts, was factor three, causation linkage.
While the courts do not create black-and-white boundaries between time periods that are small enough to support an inference of causation and those that are too long, the courts in this case agree that three months and two days (the gap between the executive’s exhaustion of her FMLA leave and the employer’s termination email) was too long to infer causation. The courts looked back to a 2014 case where the 4th Circuit court considered a shorter time window — 2 1/2 months — and found it “sufficiently long so as to weaken significantly the inference of causation between the two events.”
What the 11th Circuit Court Has Said
The 11th Circuit Court of Appeals has considered many of these same issues. In 2017, the court considered the case of a nursing facility employee who took FMLA leave. The court’s 2017 ruling is significant in several key ways. One, the ruling established a framework for calculating the period between a protected activity and an adverse action. Specifically, the court declared that the correct window was the gap between the adverse action and the last day of the employee’s FMLA leave. The court then clarified that windows spanning three or four months generally were too broad to infer a causation link.
Whether you are an employer or an employee, FMLA leave can trigger many questions, and it is vital to ensure that you are proceeding based on an accurate understanding of what the law allows (and requires). To get the reliable advice you need, talk to the knowledgeable Atlanta FMLA retaliation attorneys at Parks, Chesin & Walbert. Our team is highly experienced and thoroughly versed in protecting your rights and ensuring complete compliance with the law. Contact us through this website or at 404-873-8048 to schedule a consultation today.