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A "Reduction in Force" of One Supports FMLA Retaliation Claim


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."

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