WARNING: This could be one of my nerdiest FMLA posts yet.


At a bench trial in a Virginia federal court in 2021, with only a Family and Medical Leave Act interference at stake, the judge concluded, “[I]t’s obvious that there is definitely liability because there was clearly a violation of the FMLA. I mean, there’s just no question about it.”

But when the plaintiff asked the court to award her front and back pay, it denied her any relief in connection with the defendant’s failure to promote her after returning from medical leave.


I’ll explain.

The plaintiff was a rock star! Indeed, her work was so good she got to lead the intelligence community in the coordinated response to the Edward Snowden unauthorized disclosures.

Unfortunately, the stress of the assignment adversely affected the plaintiff, who suffered from recurrent major depressive disorder. Over time, she developed attendance issues. Although the plaintiff and defendant developed a plan to address it, the plaintiff soon disregarded it.

Eventually, the plaintiff sought medical leave, but the defendant never offered her FMLA. Instead, it referred her to an EAP. Meanwhile, the attendance issues continued until, finally, the defendant approved the plaintiff for non-FMLA leave.

After returning from leave, the plaintiff’s performance significantly improved, and her attendance was nearly flawless. So, she applied for another position but was not selected.

Yada, yada, yada, FMLA interference, victory, but no front or back pay award. The plaintiff appealed.

On appeal, the Fourth Circuit recognized that the plaintiff had to establish a nexus between the FMLA interference and any alleged damages (i.e., the defendant would have selected her for the new position had she not taken leave).

But she didn’t.

The appeals court focused on the decisionmaker, who had downplayed the plaintiff’s post-leave performance improvement and ultimately rejected the plaintiff because he believed she “approached permanent employment as an entitlement” despite her “consistent history of issues” and “recent attendance issues suggest[ing] she is more than a disciplinary problem.” Indeed, the decisionmaker perceived that the plaintiff’s issues began long before her medical leave and escalated to warrant a management referral to EAP. In his estimation, she had no shot at the promotion, medical leave notwithstanding. The plaintiff could point to no evidence suggesting that the decisionmaker took her actual leave (or even her request for leave) as a negative factor in his decision not to hire her.

The defendant was lucky because prevailing plaintiffs can recover lost wages, interest, liquidated damages, and attorney’s fees.

Your business can avoid these issues by training managers to recognize FMLA requests. Remember that employees don’t need to use the letters F-M-L-A to request it as long as they provide enough information for the employer to reasonably conclude that an FMLA event has occurred.

“Doing What’s Right – Not Just What’s Legal”
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