Paid Leave Can Be Retaliatory Under FMLA

Some people might be perfectly happy if their employer paid them to not work for more than a year.

But Wayne Foraker objected when it happened to him. Foraker says the University of Phoenix forced him to take paid administrative leave in retaliation for taking time off under the Family and Medical Leave Act (FMLA). He alleged his supervisors were displeased he had requested time off for surgery--so displeased in fact that they ultimately turned around and kept him off the job even longer.

A jury sided with Foraker--finding paid leave could be retaliatory--and a federal judge upheld the verdict in December, instructing the university to reinstate Foraker in the same or equivalent job.

The case, Foraker v. Apollo Group Inc., offers an early glimpse into legal wrangling over what now constitutes retaliation under a broad new definition set by the Supreme Court.

In June 2006, the High Court ruled in Burlington Northern & Santa Fe Railway Co. v. White an employee's unwanted transfer to a dirtier, less-desirable job could be actionable retaliation for the sexual harassment complaint she had brought under Title VII of the 1964 Civil Rights Act. Foraker expands that broad reasoning to retaliation claims brought under the FMLA, calling into question when employers can place workers on paid leave.

"If Foraker is sustained and turns out to be law, it will put employers in a very difficult position," says Edmund McKenna, a partner in the Tampa, Fla., office of Ford & Harrison.

Peeved Over Leave

According to court documents, Foraker, senior director of learning assessment in the School of Advanced Studies at the University of Phoenix, took a medical leave in 2004. Foraker alleged the university then reneged on a promised promotion and 10 percent pay raise. He filed suit in November 2004.

Then in 2005 Foraker requested another medical leave to undergo surgery. The university put him on paid administrative leave that September. and he was still off the job 15 months later. Foraker wants his old job back, says his attorney, solo practitioner Rosemary Cook.

Defense attorneys did not comment, but their pleadings denied any retaliation, saying the leave was a "cooling off period" following complaints from coworkers about Foraker's behavior. Those coworkers complained that Foraker was walking by office cubicles hourly, noting the whereabouts of other employees. One coworker testified that the "systematic surveillance" made him "feel afraid."

But the jury agreed with Foraker that paid leave and cancellation of the pay raise were retaliatory. Arizona District Court Judge David Campbell noted the absence deprived Foraker of all contact with coworkers, regular employment reviews and any normal experience or training.

The judge concluded such consequences fit the Burlington definition for what constitutes an adverse employment action--whether it could have dissuaded a reasonable employee from engaging in a protected activity.

"In some ways, it would seem an absurd result to say paid administrative leave would be an adverse action, but one can imagine circumstances under which it may be," says Greg Watchman, assistant general counsel for Freddie Mac.

In Foraker's case, for example, the fact that the paid leave was for an unusually long period played a significant role in the court's decision.

"If you look at the holding in the abstract, it's quite troubling," Watchman said. "But if you drill down to the specific facts, I think the significance of the case is quite limited."

Under The Circumstances

Even when appellate cases flesh out more detail about what can be retaliation under Burlington's broad reasonable-worker standard, those rulings are expected to revolve largely around unique factual circumstances--limiting the guidance they offer to future litigants in factually distinct scenarios. So far, the Burlington standard has played both ways.

In Kessler v. Westchester County, the 2nd Circuit Court of Appeals reinstated a retaliation case in August 2006 that a lower court had dismissed over a worker's unwanted transfer. The court cited a number of factors, including that the plaintiff allegedly lost policy formulation responsibilities and no longer supervised anyone.

But in Thomas v. Potter, the 7th Circuit Court of Appeals ruled in October 2006 against a plaintiff who alleged his transfer from the day shift to the night shift was retaliatory. The worker had shown no evidence of knowledge or intent by the employer that a shift change would be "undesirable or inconvenient," the ruling states.

Other circumstances that may play into any individual retaliation case include whether there was a legitimate business reason for an action, and whether a plaintiff was treated in the same way as other workers, says Melvin Muskovitz, an attorney in the Ann Arbor, Mich., office of Dykema Gossett.

"It's so fact-specific. ... In the context of why and how a decision was made, those other factors are important," Muskovitz says.

Overall, employers must make sure there is close review of actions against a worker who has invoked protected rights under Title VII, the FMLA or any other federal employment laws.

"[Foraker] shows that employers are really going to have do what amounts to an individual analysis of any employment action to see if it meets the Burlington Northern standard," says Linda Whittaker, associate general counsel for Wal-Mart Stores Inc.

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