Dive Brief:

• A Rowan University professor should get another shot at his Family and Medical Leave Act claim, the 3rd Circuit Court of Appeals decided, reversing a portion of a district court’s ruling that the employer did not retaliate against a professor for taking leave (Pontes v. Rowan University, No. 20-2645 (3rd. Cir., Sept. 13, 2021)).
• The lower court concluded that the professor’s retaliation claim should be dismissed because it implied that the school "had a legitimate, nondiscriminatory, and non-retaliatory reason for imposing discipline." The appellate court disagreed, arguing that the professor established a retaliation claim by alleging that he requested and took FMLA leave to go to India to care for his mother; that he suffered an adverse employment action when Rowan University withheld his pay; and that the withholding was connected to his leave because it was punishment for his absences.
• The university argued that withholding an employee’s pay did not constitute an adverse employment decision under the FMLA. This logic contradicted the view of the appellate court, which previously took the position that an adverse action is one that "alters the employee’s compensation, terms, conditions, or privileges of employment, deprives him or her of employment opportunities, or adversely affects his or her status as an employee."

Dive Insight:

As the court pointed out in its opinion, plaintiffs need to do three things to advance a retaliation claim under the FMLA: invoke their right to FMLA-qualifying leave; suffer an adverse employment decision; and show that the adverse action was "causally related" to the invocation of rights.

Courts tend to use a high bar when they judge whether an employment action is truly adverse — the second element of the retaliation claim. In a 2018 decision, the 6th Circuit ruled that isolated criticism did not amount to an adverse employment action. 

Courts also don’t spare workers whose employers demonstrate that their termination was carried out due to performance problems or other legitimate reasons, and not due to their leave. The 5th Circuit, for example, found an employer did not fire an employee in retaliation of her leave, despite her termination occurring just a week after her return. The employer provided "strong evidence" that the HR manager was let go for poor performance, the court said.