June/July 2006 FMLA News

• Position Plaintiff Held Before Taking Maternity Leave Was Equivalent To The Position She Was Offered Upon Her Return
• Plaintiff Failed to Establish FMLA Violation or Retaliation

Position Plaintiff Held Before Taking Maternity Leave Was Equivalent To The Position She Was Offered Upon Her Return (6/23/06) - 5th Cir.
Phyllis Smith was employed by the East Baton Rouge Parish School Board as its Assistant Supervisor of School Accounts. This position required her to assist school principals and staff in accurate bookkeeping. While she was on maternity leave, the Board reorganized the School Accounts department. As a result, Smith's job description was revised. She was no longer required to travel to the various schools of the district and work directly with principals and their staffs. Instead, she audited the schools' books from a central office.

Smith brought suit alleging violation of the Family and Medical Leave Act ("FMLA"). The FMLA guarantees eligible employees up to twelve work weeks of leave in a twelve-month period after the birth of a child. The employer must thereafter restore the employee to the same position as previously held or a comparable position with equivalent pay, benefits, and working conditions. The district court granted summary judgment for the Board, finding as a matter of law that Smith's new position was equivalent to her former position. On appeal, the 5th Circuit affirmed:

Smith argues that the district court erred in determining as a matter of law that the position she held before taking maternity leave was equivalent to the position she was offered upon her return. To be equivalent, an employee's new position must be "virtually identical to the employee's former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority." It must also have similar opportunities for promotion and salary increase. Other relevant considerations include whether employees generally view the new and old positions as equally desirable. De minimis, intangible changes in the employee's position do not, however, violate the FMLA.

In Montgomery v. Maryland, for example, the plaintiff was offered a position as a secretary upon her return from leave from her position as an administrative aid. She suffered no loss in benefits. She alleged, however, that her former position was "truly administrative" while her new position consisted of "the simplest, most menial of clerical functions: answering the phone, taking messages, typing simple correspondence, and the like." She further alleged that her former position came with its own work area whereas her new position required her to share a room with another employee. The Fourth Circuit held that as a matter of law, these allegations established only a de minimis change in position.

In the case at bar, it is undisputed that Smith was offered the same salary in her new position as Assistant Supervisor of School Accounts. Both positions involved school accounting responsibilities, and Smith conceded that the job descriptions and title are very similar. She nevertheless argues that the new position was not equivalent because it no longer required her to travel to various schools in the district to provide bookkeeping training and support to principals and secretaries. Her new position instead required her to perform auditing functions in a single office. Like in Montgomery, these sorts of de minimis, intangible differences do not give rise to FMLA liability.

Smith v. E. Baton Rouge Parish Sch. Bd.

Read the case: http://caselaw.lp.findlaw.com/data2/circs/5th/0431199cv0p.pdf

The 5th Circuit Court of Appeals' jurisdiction includes Louisiana, Texas and Mississippi.

Return to top

Plaintiff Failed to Establish FMLA Violation or Retaliation (6/27/06) - 11th Cir.
Robert Drago, an employee in a county sheriff's department, brought suit for alleged wrongful interference with his rights under the Family and Medical Leave Act ("FMLA"), and for discriminatory retaliation for exercising those rights. The district court granted defendants' motion for summary judgment.

On appeal, the 11th Circuit affirmed, holding that: (1) the department's failure to permit Drago, who had taken FMLA leave with no indication of the probable duration of the psychological condition allegedly necessitating the leave, to immediately return to work with no advance warning, was not a violation of Drago's FMLA rights; (2) the department's insistence that Drago take another two days of leave until he could provide certification from a psychologist that he was fit to return to work, was not a violation of Drago's rights; and (3) the fact that Drago was demoted a mere three months after complaining that the department had violated his FMLA rights, was insufficient, without more, to raise a genuine issue of material fact whether Drago's demotion was causally connected to his complaints, given overwhelming evidence of prior complaints regarding Drago's performance and of prior discussions of the possibility of demoting Drago before he ever raised the issue of his FMLA rights.

Drago v. Jenne

Read the case: http://caselaw.lp.findlaw.com/data2/circs/11th/0511276p.pdf

The 11th Circuit Court of Appeals' jurisdiction includes Alabama, Georgia and Florida.

Return to top