‘FMLA intermittent leave is killing us!’ says frustrated boss.
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‘FMLA intermittent leave is killing us!’ says frustrated boss.

“Just get back to the machine,” production supervisor Lamont Sutton told operator Betty Billups, shouting over the clatter of the factory floor.

“You’ve never placed me alone on that machine before,” Betty resisted. “It’s harmful to my bad back, the reason I’ve been taking intermittent FMLA leave.”

“You’re qualified to run it, and that’s all I care about,” Lamont said, turning and walking toward his office. Betty followed him.

“Hold it, Lamont,” she said. “We’ve worked together for five years and I’ve never been treated this way –until I asked for FMLA intermittent leave.”


“Your work was never as bad,” he grumbled. “You messed up those measurements on the run for Ace Corp and we had to discard the whole batch.”

“You wrote me up for that mistake, but you never wrote up Tom Bizanti,” Betty said. “He did the same thing two months ago.”

“Tom doesn’t take off time like you do,” Lamont replied. “We had to warn you about unexcused absences twice this summer.”

“You know the trouble my back’s been giving me!” Betty said. “I’ll remind you that my chiropractor submitted a written excuse, and HR is allowing me time off under the FMLA. Intermittent leave allows me to take off when I need it. Maybe I was a little late with a couple excuses, but the other times I missed were FMLA-authorized.”

“Be that as it may, I have a shop to run,” Lamont said.

“All right, but I’d like a little more respect, from you and the other operators,” Betty said. “I’ve been receiving some cold treatment these days.”

The following week, Betty missed another day. Her excuse was late. Because it was her fourth such absence that year, she was terminated. She sued, claiming her company retaliated against her for taking FMLA intermittent leave, and violated her FMLA rights.


Betty won her lawsuit. A court agreed there was evidence of increased hostility toward her after she began taking FMLA intermittent leave for her chronic back pain.

Betty’s supervisor was allowed to write up operators for inputting bad measurements, but he had never done it before. One operator even testified that when co-workers informed him of her mistake, Lamont took the allegations more seriously than he did those about other workers.

Also, Lamont didn’t give serious consideration to Betty’s request for lighter-duty work after she began taking FMLA intermittent leave. This pushed Betty toward the absence that got her fired.

Different treatment: Retaliation results most often when supervisors treat a worker differently than other workers, or differently than they treated the worker before.

This applies in instances of intermittent FMLA and regular FMLA leave, as well as gender, racial, or religious discrimination.

Take home: It’s critical for supervisors to maintain an even demeanor toward all employees, even problem ones, at all times.

Cite: Pinson v. Berkley Medical Resources, No. 03-1255, W.D. Pa., 6/21/2005

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