Asking employees if they can ‘get things done’ interferes with FMLA leave

Edward had some issues at work. He felt the employer was discriminating against him because of his race. While he and the company worked through that, he asked for leave under the federal Family and Medical Leave Act (FMLA) to care for his daughter. The company granted his FMLA leave request.

When Edward told Gale, his supervisor, about the leave request, Gale was sympathetic but expressed concern over Edward’s ability to “get things done” if he planned to be out of the office regularly.

Gale had planned to give Edward a reprimand letter the day he told her about his need for FMLA leave but decided to wait to give it to him out of consideration for his family circumstances.

About six weeks after asking for FMLA leave, Edward was fired for poor job performance.

Edward sued, claiming discrimination as well as retaliation for his FMLA leave request. He pointed to a written reprimand the company gave him only a week after he requested FMLA leave. The letter was about issues from a month before that the employer didn’t address at that time.

The company argued that the reprimand was not an adverse employment action. They claimed the discipline wasn’t related to the FMLA leave. But the reprimand said, that “[a]ny further breaches of our confidence in your ability carry out your expected managerial duties will result in additional discipline, up to and including the possibility of employment termination.”

The court indicated that the Supreme Court has made clear that employees don’t have to experience an adverse employment action. Employees only have to experience an action that is “materially adverse” in the retaliation context. This includes actions that “could well dissuade a reasonable worker” from exercising his rights.

Edward pointed to Gale’s negative comments about his ability to “get things done” if he planned to use FLMA leave regularly. The court denied the employer’s request for summary judgment on Edward’s FMLA claim. The employer will need to continue to defend its actions in court.

McDonald v. Metropolitan Nashville Airport Authority, Middle District of Tennessee, No. 3:22-cv-00514, February 6, 2025.

Key to remember: Employers should avoid negative comments about an employee’s FMLA leave, as they risk losing an argument in court.