Jessica Brown was fired five days after she complained about what she considered a demotion due to her use of pregnancy leave. She then sued her employer, alleging among other things a violation of both the discrimination/retaliation and interference/entitlement prongs of the Family and Medical Leave Act (FMLA). The district court granted summary judgment to her employer and she appealed. Reviewing that judgment, the Eighth Circuit reversed the dismissal of two of her FMLA claims – the entitlement and retaliation – but agreed that her discrimination claim was properly dismissed. Brown v. Diversified Distrib. Sys., LLC, No. 14-2685 (8th Cir. September 4, 2015).
Brown had been employed by Diversified for about 10 years, most recently as an account executive. While she had enjoyed great success in her early days at Diversified, her performance as an account executive had been spotty. Brown had also used FMLA leave for a serious health condition in 2010 without incident. It was in 2012 – after Diversified came under new ownership – that events leading to the lawsuit occurred.
In January 2012, Diversified held a meeting to discuss reorganization of the company’s account executive staff. As part of the reorganization, Brown was to be moved from account executive to a restructured backup account executive position that would have the same pay and benefits as the account executive job.
Prior to this meeting and the decision to put her in a new position, Brown announced that she was pregnant. It was a high risk pregnancy. Company managers claimed that they did not tell Brown of the reassignment at the time to “avoid causing additional stress.” Diversified also accommodated Brown’s many medical appointments and her request to work from home at night to make up for time she missed. This enabled Brown not to use FMLA leave before her child was born in June 2012.
About this same time, one of Diversified’s larger accounts advised it was taking its business elsewhere, necessitating a reduction in budget and a further staff reduction. Brown was asked to return from FMLA leave early, agreeing that Brown could work from home during that time. Brown was also told of the reassignment at this time. The next month, additional staff viewed as “underperformers” were considered for layoff. One of them was Zac Litzow. According to her manager, Brown was not selected because she would be put in the “backup” account executive role.
When she learned of the reassignment, Brown complained it was a demotion, even though it came with the same salary and benefits. When Brown was shortly thereafter told she could no longer work from home on Mondays (something she had been able to do), she restated her concerns – telling management that she thought she should have been returned to her same position. Five day later she was fired. Litzow, however, was retained.
Brown raised three alleged FMLA violations: denial of entitlement under 29 U.S.C. § 2615(a) (1), and discrimination and retaliation under 29 U.S.C. § 2615(a) (2). The denial of entitlement claim was based on the decision not to return her to the account executive job but to reassign her to the backup position. Discrimination was based on being “demoted;” retaliation was based on the termination decision.
The Eighth Circuit upheld summary judgment for Diversified on the discrimination claim, finding that there was no material dispute that the reassignment had been discussed before Brown had asked for FMLA leave. Therefore, because the concept was being considered before the alleged basis for it occurred, there could be no prima facie case. The court noted that, while Diversified did not produce any written business records to prove the reassignment before Brown requested leave, “Brown also has produced ‘no evidence to rebut’” the testimony of the company’s witnesses on that score.
Diversified did not fare as well on the other two claims. As to the retaliation claim, the temporal proximity (five days) between Brown’s complaint and the termination, coupled with the change of heart to keep Litzow and not Brown was sufficient to raise the possibility of retaliatory motive.
On the entitlement claim, the court held that Diversified did not rebut – indeed it conceded – that it had not returned Brown to an account manager position. Therefore, because motive is not an issue under the FMLA’s interference/entitlement prong, summary judgment for Diversified was not appropriate.
What Diversified needed to show here – and apparently did not – was not that Brown received the leave she desired (she did), but that she received all that she was entitled to get under the FMLA. An employee is not entitled to return to the same position at the conclusion of FMLA leave in every circumstance. The FMLA does not provide an employee more rights to a job than if the employee was at work and working when the adverse action occurred. If, for example, the position would have been eliminated for legitimate business reasons had an employee been working, but the employee happens to be on FMLA leave, there is no FMLA violation.