Dive Brief:

• A United States Postal Service supervisor did not interfere with a custodian's Family and Medical Leave Act leave rights when she intimidated her subordinate, but her behavior may have constituted retaliation, a district court ruled (Mitchell v. DeJoy, No. 2:18-cv-1385 (S.D. Ohio, Sept. 20, 2021)).
• At the beginning of 2017, USPS approved the plaintiff's request to take FMLA leave to deal with chronic back pain and care for her daughter, who has autism, according to court documents. The plaintiff used about 1,000 hours of FMLA leave in about four years. The custodian made claims of age, race and sex discrimination with the U.S. Equal Employment Opportunity Commission after she was denied safety captain and temporary supervisor positions. When she asked why USPS denied her the positions, "one supervisor told her that the other supervisors believed she was 'taking too much time off work' and 'exaggerating her daughter's condition,'" she said. 
• Less than a week after the custodian filed her initial charge, her supervisor "raised her fist and said, 'hit your face against this,'" the worker alleged. Two supervisors later backed her into a corner and asked her why she took a break to go to the bathroom before telling her they were going to observe her work.

Dive Insight:

The court dismissed the custodian's claims that her supervisor interfered with her FMLA leave rights. The court reversed course, however, in reviewing her claims of retaliation.

The custodian could not prove that she suffered adverse action that interfered with her ability to take FMLA leave, the court said. The court noted that adverse actions, in this context, include employment actions such as firing, failing to promote, reassignment and a change in benefits. "The employment action must be more disruptive than a mere inconvenience or alteration of job opportunities," it said.

The custodian admitted she had not been fired, demoted or otherwise punished. She transferred to a facility in another state, but that move was voluntary and recommended by her physician. And while she was denied several positions and encountered hostile behavior from her supervisors, none of the events she described changed the terms of her employment, the court said.

So while the supervisor's alleged actions didn't constitute interference, a jury may interpret them as retaliatory, it concluded. The court once again considered whether the manager's behavior rose to the level of adverse action — using a different definition. "An adverse action in the retaliation context is broader and easier to satisfy than in the interference context," the court noted.

In terms of retaliation, an adverse action is broader than something that affects "the terms and conditions of employment." Rather, an adverse action is anything that dissuades someone from making or supporting a claim of discrimination, the court said. Combined with the worker's denial of trainings and other work opportunities, the behavior rises above workplace annoyances, the court said