Dive Brief:

• A nurse who did not qualify for Family and Medical Leave Act (FMLA) leave can still continue with her retaliation claim against her former employer, a federal district court determined (Gomes v. Steere House, No. 20-270 (D. R.I. Nov. 2, 2020)).
• The employee sued nursing and rehabilitation center Steere House, alleging it fired her after she became ill with COVID-19 and asked for paid FMLA leave. Finding her ineligible for FMLA, the employer fired her, according to her complaint. She sued, alleging she was entitled to paid leave established by the Families First Coronavirus Relief Act. That law's provision for workers who contract COVID-19, however, is not tied to the FMLA, the court later explained; only the provision granting paid time off for caregiving amended that law.
• The employer asked the court to dismiss her FMLA retaliation claim but it declined, saying the employee had shown that she tried to take advantage of FMLA rights and had alleged a close temporal proximity to support the proposition that her request for FMLA initiated her firing.

Dive Insight:

Gomes illustrates that even when an employer succeeds on an underlying claim, it can still face legal trouble from a retaliation claim. Most of the nation's employment laws forbid retaliation against workers who engage in protected activities, but retaliation complaints are a common occurance, according to the U.S. Equal Employment Opportunity Commission.

Other courts have reached similar conclusions. The 6th Circuit let stand a jury's finding that a police officer was subjected to retaliation for his bias complaint, but not bias itself. Similarly, the 2nd Circuit allowed an employee's retaliation claim to proceed, even though her sexual harassment and race discrimination allegations were unsuccessful. The court said that while her allegations were not actionable because they were petty slights, her claim that she was forced to work through her lunch hour after she complained was enough to sustain her retaliation claim.

The Gomes court specifically noted the "close temporal proximity" between the plaintiff's leave request and her termination. Because timing alone can establish a prima facie case of retaliation, employers should be careful not to engage in retaliation red flags — such as increased supervision, highlighting alleged performance issues or increased work standards or expectations — after an employee has engaged in protected activity, experts previously told HR Dive.