The Family and Medical Leave Act (FMLA) provides that use of FMLA leave cannot be used as a “negative factor” in employment actions designed to discourage an employee from taking leave. See 29 C.F.R. § 825.220 (b) and (c). There are two types of FMLA claims: “interference” and “discrimination/retaliation” claims.
Courts have rejected the notion that the FMLA – unlike Title VII or the ADEA – provides for a “hostile work environment” cause of action. See, e.g., Garza-Delgado v. United Indep. Sch. Dist., 2017 U.S. Dist. LEXIS 159091, at *28 (S.D. Tex. 2017), citing Smith-Schrenk v. Genon Energy Servs., L.L.C., 2015 U.S. Dist. LEXIS 3007, at *13 n.60 (S.D. Tex. 2015) (noting that the court could not find any case where a federal court has recognized an FMLA cause of action based on a hostile work environment).
So, what about when alleged bad behavior by a supervisor is harassing behavior related to an employee’s use of protected leave? Well, if there’s some actual discipline or involved, that will almost certainly get a plaintiff past an employer’s motion to dismiss. That’s where our story begins in Paterakos v. City of Chicago, 2021 U.S. Dist. LEXIS 193372 (N.D. Ill. Oct. 7, 2021).
Remember that the facts recited here are from the court’s opinion, which was based on the plaintiff’s complaint. As such the facts alleged are deemed true for purposes of review when the court considers a motion to dismiss.
Dr. Stella Paterakos worked for the City of Chicago for 30 years. She sought and was granted intermittent FMLA leave to care for her aging and critically ill father. Some of this intermittent leave occurred during the workday when she needed to take time for telephone calls regarding her father’s care. No problem, until Dr. Paterakos got a new supervisor a couple of months later – Crystal Warren. Almost immediately things did not go well.
According to the complaint, Ms. Warren would routinely harass Dr. Paterakos, following her to the bathroom, questioning whether she had permission to go on a break, restricting which bathroom she could use, scolding her for using her personal cell phone at her desk, and telling her to schedule her use of FMLA time in advance because it was otherwise “too disruptive.” Ms. Warren charged Dr. Paterakos with being “incompetent,” “inefficient,” and “insubordinate” in a pre-disciplinary memo and, in a meeting with a union representative, told Dr. Paterakos that she was “too privileged” for Ms. Warren to speak to her, which Dr. Paterakos understood to refer to “white privilege.”
Dr. Paterakos felt that there was race and age discrimination involved here too (notably the City did not move to dismiss those counts). After getting one and three day suspensions from Ms. Warren, Ms. Paterakos was given a third “pre-disciplinary” hearing notice for allegedly socializing around City Hall when she took time to make calls regarding her father’s care.
The City moved to dismiss Dr. Paterakos’s FMLA interference claim for two reasons: (1) she was never denied leave; and (2) the City had an honest belief that she was abusing her leave. The District Court bought neither of those arguments, and correctly so.
First, as mentioned above, the FMLA interference occurs when an employer uses FMLA leave as a negative factor in a employment action. Here, at least as alleged and before discovery has occurred, there’s every suggestion that is exactly what Ms. Warren did.
Second, the jurisprudence on “honest belief” FMLA cases is well developed: an employer will never get a motion to dismiss granted using an honest belief defense unless the plaintiff admits in the complaint to actions that support the defense, thereby self-sabotaging the claim. Most competent counsel can avoid shooting themselves in the foot. Here, Dr. Paterakos’s complaint did not have any self-defeating language, prompting the court to suggest the factual issue of an honest belief defense would be better addressed on summary judgment or at trial.
The takeaway here? All we have to go on here is the complaint, that is true. But if the sort of harassing behavior alleged to have occurred really did occur, combined with the discipline imposed, it was not Dr. Paterakos who was “incompetent,” “inefficient,” and “insubordinate.”
Employers need to be vigilant to ensure supervisors behave in a way that is civil and respectful, regardless of how frustrating an employee’s actions are. Especially if those actions – like using intermittent FMLA leave – are legally protected.