Employers use the term "reduction in force" to justify an employee's
termination. Generally, that term implies that a group of workers are
being let go for financial reasons. But what if it is used as the reason
for termination just one employee, who just happens to have taken FMLA
leave just prior to the "reduction in force"? Sounds a bit fishy, right?
Mark Callan, the IT Director for the city of Dover, Delaware, had worked
for the city since 1996, had been treated for depression and taken anti-depressants
since the mid-'80s. His wife was diagnosed with cancer in 2002 and
passed away in 2009. During those seven years, he intermittently took
time off for family medical leave and mental health treatment. He also
received positive annual reviews.
On January 8, 2010, the city manager told Callan that two former subordinates
had complained about him during their exit interviews with the HR director
in July and December. They expressed displeasure with his management style
and blamed him for low morale, stating that they would not have resigned
if a different leader were in place. A few days later, Callan advised
the HR director that he was receiving counseling and taking medication
for depression. She subsequently advised him to submit the requisite FMLA
paperwork, which he did on January 19. The city approved his application
the next day.
On January 22, the city manager and HR director met with the IT staff to
gather feedback regarding the Callan's performance. On January 25,
the two met with Callan to discuss staff comments, which had corroborated
the prior complaints against him. The next day he sent an email to his
staff explaining his mental condition following his wife's death.
That same day, he met with the city manager, who was upset that he had
sent the email.
After Callan was counseled on July 20 on his further failure to improve,
he used FMLA leave due to stress. Three days later, his attorney wrote
the city manager a letter regarding his treatment of Callan. Six days
later, on July 29, Callan was reassigned to an administrator position,
resulting in a $22,000 decrease in pay. Three days later, he was injured
in a motorcycle accident and hospitalized. The city manager visited him
and informed him that he had no additional projects to assign him, and
that he could either retire or be discharged. Several weeks later, while
he was still hospitalized, the city manager informed him that he was being
let go due to a reduction of force.
The Delaware federal
court found adequate evidence suggesting that the city's proffered reasons
for his demotion and subsequent termination were just a pretext. Specifically,
the city's lack of investigation into his FMLA complaints —
especially when compared to its extensive investigation into IT staff
complaints — indicated that he was treated differently than other
employees. In addition, a RIF that results in a single employee being
terminated suggests a lack of credibility. According to the court, although
the city stated that it was characterized as such in order to enable him
to obtain unemployment insurance, this explanation did little to support
its position that his termination was non-discriminatory.
The takeaway: For a retaliation claim to succeed under the FMLA, you must
show a causal connection between your protected activity, i.e., your legal
right to take medical leave, and your employer's decision to terminate
you. If such a connection exists, then you have a valid claim, regardless
of your employer's purported justification of a "reduction in
force". This is especially true if you are the only employee affected
by the "reduction in force."