Can an employee succeed on a retaliation claim if the decision maker did not know about the alleged protected activity at the time the employer decided to terminate? The answer, according to McElroy v. Sands Casino (E.D. Pa. 1/9/14), is no.
Darryl McElroy, a dealer at the Sands Casino, submitted his Family and Medical Leave Act request to the employee in Defendant’s human resources department who deals with benefits inquiries, Stacey Berasley. As was her practice, Berasley sent the claim to the company’s outside third-party benefits administrator, for a determination on the FMLA request. She did not tell anyone at the company about McElroy’s request for FMLA leave. Two months later, the company fired McElroy for harassing a co-worker. Berasley played no role whatsoever in the termination. McElroy claimed the termination was in retaliation for his FMLA request. The court disagreed, and dismissed the FMLA-retaliation claim.
But there surely can be no causal relationship between an FMLA request and a termination, and any temporal proximity cannot be considered suggestive, if the party making the termination decision had no knowledge of the FMLA request…. Here, none of the individuals involved in Plaintiff’s termination knew about his FMLA inquiry…. The record indicates that only Berasley knew about Plaintiff’s FMLA inquiry, and she has declared, “As is my practice with all questions regarding FMLA leave, I did not tell anyone in the Human Resources department or any of Mr. McElroy’s managers about his inquiry.” Nothing in the record could support a jury’s determination that anyone else knew; therefore, the retaliation claim fails as a matter of law.
Whatever the case, you can help insulate your company from retaliation claims by training your employees to treat FMLA requests (and other instances of protected activity) as need-to-know. The less people who know that an employee asked for FMLA leave (or made a harassment complaint, or filed an Equal Employment Opportunity Commission charge), the better you will be to claim that the decision maker had no knowledge of the protected activity.