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Separation of Protected Activity and Discipline can Shield Employers From Retaliation Claims

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.

January 16, 2014
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Related Topics: FLSA, Legal Compliance, Retaliation, Wrongful Discharge, Family and Medical Leave Act, Medical Benefits Law, Discrimination and EEOC Compliance, Policies and Procedures, Legal
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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.
In a perfect world, every company would operate like the employer in this case, with a separate department to handle FMLA request, which, in turn, minimizes the risk that a decision maker will learn of an FMLA request before taking an adverse action. As we all know, however, our world is far from perfect. Your organization might not be big enough to enjoy this luxury, or, maybe the employee tells someone other than an FMLA administrator of a need for FMLA leave.

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.
 
Jon Hyman is a partner in the Labor & Employment group of Kohrman Jackson & Krantz. Comment below or email editors@workforce.com.  For more information, contact Hyman at (216) 736-7226 or jth@kjk.com. Follow Hyman on Twitter at @jonhyman.

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