FMLA

Supervisor And School Potentially Liable For Adverse Employment Actions Taken Against Employee While Employee Was On FMLA.

Clark, a private university, hired Randi Rousseau as a Cataloging Librarian in 2003 and promoted Rousseau to Head of Cataloging in 2012. During the 2019-2020 academic year, Rousseau also served as acting Head of Collections. From 2013-2019, Rousseau received positive performance reviews, with overall rankings of “Commendable” or “Satisfactory.” In 2020, the University hired Laura Robinson as the University Librarian. Robinson became Rousseau’s supervisor. Since Robinson was hired, Rousseau underwent three surgeries requiring use of medical leaves in June 2020, August-September 2021, and December 2021-February 2022.

Rousseau said that shortly after Robinson learned of Rousseau’s need for Medical Leave in December 2021, Robinson issued Rousseau a written warning, raising alleged dress code violations (i.e., wearing jeans and sneakers in the office) that had previously never been brought to Rousseau’s attention, and harmless interview questions asked by Rousseau to an internal candidate (i.e., whether the candidate would feel comfortable supervising her former supervisor).

During Rousseau’s leave in January 2022, Robinson requested a change of title for Rousseau to “Cataloging and Metadata Librarian,” due to the alleged needs of the library. This change removed Rousseau’s supervisory responsibilities.

When Rousseau returned from leave on February 7, 2022, she needed to attend approximately ten medical appointments upon her return and through June 2022. On June 13, 2022, the University terminated Rousseau. The termination letter noted that Rousseau had been given feedback multiple times and follow-up over the past months on several areas of poor performance, including poor communication, calendar management, time keeping inaccuracies, and failure to adopt a “more enthusiastic approach to projects specific to [her] new job description.” Rousseau alleged that these performance issues were not previously brought to her attention as issues worthy of discipline or termination, nor were they raised in her December 2021 written warning.

Rousseau filed suit against Robinson and the University alleging retaliation against, and interference with her exercise of rights under the Family and Medical Leave Act (FMLA). FMLA and its accompanying regulations prohibit an employer from interfering with, restraining, or denying the exercise of any FMLA right and from retaliating or discriminating against employees who have used FMLA. Rousseau argued that Robinson interfered with her FMLA rights and retaliated against her for exercising those rights.

To establish a case for interference with FMLA, Rousseau must show that (1) she was eligible for FMLA; (2) her employer was covered by FMLA; (3) she was entitled to leave under FMLA; (4) she gave her employer notice of her intention to take leave; and (5) her employer denied her FMLA benefits to which she was entitled.

Rousseau argued that Robinson interfered with her FMLA benefits by demoting her and stripping her of her supervisory responsibilities in the middle of her approved leave. Rousseau also argued that she was not reinstated to a position equivalent to the Head of Cataloging upon returning from leave. Robinson did not challenge Rousseau’s eligibility for FMLA, and instead argued that she is not an employer within the meaning of FMLA and therefore not individually liable. Robinson also argued that Rousseau’s new position upon returning from leave was equivalent to her former position.

The Court concluded that “employer” includes any person who acts, directly or indirectly, in the interest of an employer to any of the employees. Robinson exercised sufficient control over Rousseau to be considered an employer because she supervised Robinson and controlled the conditions of her employment by issuing Rousseau discipline, changing her job title and duties, and playing a role in terminating Rousseau.

The Court also concluded that the change in title impacted Rousseau’s status and job duties, in violation of Rousseau’s reinstatement rights under the FMLA. Rousseau lost her supervisory responsibilities, which plausibly reduced her workplace status. Rousseau’s termination letter identified her failure to adopt a more enthusiastic approach to her new job description as a reason for her termination. This acknowledgment of a “new job description” undercut Robinson’s argument that the position was equivalent to her former role.

To establish a case for retaliation, Rousseau must show that (1) she availed herself of a protected FMLA right; (2) she was adversely affected by an employment decision; and (3) there was a causal connection between her protected conduct and the adverse employment action. Robinson argued that there was no causal connection between use of FMLA and the adverse employment actions (i.e., the written warning, the demotion, and the termination). None of Rousseau’s supervisors expressed displeasure at her use of FMLA or connected that use to adverse employment actions. Rousseau argued that a causal connection should be inferred due to the prior positive performance reviews and the short time between her exercise of FMLA rights and adverse actions.

Rousseau’s performance reviews from 2013-2019, prior to her leaves, were positive, and there were no performance reviews for the years immediately preceding the December 2021 to February 2022 leave. Then, shortly after learning of the need for medical leave in December 2021 and shortly before taking that leave, Robinson issued the written warning. The Court concluded that the timing of these events suggested that Robinson and the University retaliated against Rousseau for exercising her FMLA rights. The Court noted that the concerns raised in the termination letter were not brought to Rousseau’s attention prior to her exercise of FMLA rights, and the lack of performance reviews prior to her leave undercut the credibility of several potential legitimate reasons for Rousseau’s termination.

The Court denied Robinson’s motion to dismiss.

Rousseau v. Clark University (D. Mass., May 12, 2023) 2023 WL 3435570.

Note: This case is an important reminder that schools should be documenting any performance concerns as they arise. In this case, the employee was not aware of the performance concerns until after she had indicated her need to take FMLA, creating an inference that the adverse employment actions were in retaliation for taking protected leave. This case is also a good reminder that supervisors’ actions can potentially create liability for a school, as was the case here.