On her first morning back from a three-month FMLA leave, Angela Crossman was intercepted at her desk and summoned to a meeting with her boss, Jerry King. At the meeting they discussed the poor quality of her work leading up to the day that her leave began.

The next morning Jerry summoned her again, telling her she was disqualified as a supervisor. “How can you demote me on my first day back from FMLA leave?” Andrea asked.

Jerry didn’t enjoy this, but he had to do his job. “Actually, it’s your second day back,” he said.

“It’s obvious you’re punishing me because I took leave,” said Andrea. “That’s an FMLA violation!”

The company’s reasons

Jerry reiterated much of what he’d said the day before: “You’ve been with Ortman Inc. for over 20 years, and we value you as an employee. But since your promotion six months ago, you’ve made four times more processing errors than any other supervisor. And your work is consistently late.”

Jerry said the company couldn’t afford the errors Andrea was sure to make as a supervisor. He gave her a choice: a floor position or a lay-off.

“Why didn’t you demote me and send me back to the floor before my leave?” Andrea asked.

“We probably should have for the reasons we discussed yesterday,” said Jerry. “But we did reinstate you to your former job. We spoke about your performance yesterday, and today we’re disqualifying you.”

“One day!” said Andrea. “You can’t get away with this—I’m sure this is an FMLA violation!”

Andrea sued, claiming Ortman Inc.’s failure to restore her to her former position was an FMLA violation.

Did the employer win?

The decision

Yes. A court dismissed Andrea’s lawsuit, noting that under FMLA an employee returning from FMLA leave must be restored “to the position of employment held by the employee when the leave commenced” or to a position with equivalent pay and benefits. Anything else would be FMLA violation.

Andrea, of course, argued that the company engaged in a cruel ploy by taking her back as a supervisor – and thus complying to the letter of the law – but then demoting her the very next day.

On the face of it, she had a strong case for retaliation. What jury wouldn’t be sympathetic with an employee who was punished for exercising her right to FMLA leave? If the company simply “found someone better” in Andrea’s absence, wouldn’t that violate the spirit of the law?

Proactive HR proved there was no FMLA violation

The company won this case by persuading the court that Andrea was demoted because she was a bad supervisor. Her performance problems– and efforts by the company to help her improve– were carefully documented beginning shortly after her promotion to supervisor. There was little room to argue that it was FMLA violation, rather than poor performance, that terminated her.

Andrea claimed in court that initially she had received only four weeks of training instead of the six weeks offered to other supervisors. That was true, but it backfired on her in court because the company was able to show that she received additional training – and that it didn’t help! Her superiors had also documented that Andrea had received additional coaching, which was likewise unsuccessful.

The company had a difficult burden in this case. Because it failed to demote Andrea when it should have – i.e., before she went on leave – it found itself in the awkward position of persuading the court that her demotion was inevitable and not due to FMLA violation or “finding someone better.”

It overcame that burden with persuasive documentation.

Cite: Carpenter v. Northwest Airlines, U.S. District Court, District of Minnesota, No. 00-2490, 2/5/02. Fictionalized for dramatic effect.

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