More on Reprisal

December 12, 2006

The Federal FMLA Blog: Retaliation reports that an employee’s opposition to the denial of FMLA leave to a coworker was found to constitute unlawful reprisal.

Another new development is a Federal court case in Arizona which found that elminating an employee’s title and position, and then putting  the employee on indefinite paid administrative leave against his will while he was on medical leave was found to constitute unlawful retaliation under the FMLA.  This is one of the first expansions of the new criterion established in the Burlington v. White Supreme Court case (discussed below) to the FMLA.  The court found that the undesired leave was “materially adverse,” and thus met the standard for retaliation, despite the fact that the employee continued to be paid. See Foraker v. Apollo Group, Inc (D. Ariz.2006)

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It’s Not Over When It’s Over– Retaliation Matters

November 28, 2006

Following an investigation that took several months, and created a lot of bad feelings in the workplace, Frank, the manager of the Sales group decided to pull everyone together.

“It’s been a rough winter for all of us, ” said Frank. “A lot of people are feeling badly and we’ve lost a few good people. It’s time to pull together as a team and be positive.”

As a murmur began amongst his team, Frank held up his hand and looked directly at a group sitting together towards the back of the room — the individuals who had filed the complaint that spurred the investigation. He stared directly at them, and his voice became stern.”And let me be clear, right now. There will be no more complaints. If you’ve got a problem, either keep it to yourself or fix it. No complaints. Am I understood? ”

Retaliation? Up until recently, there was ambuiguity about whether or not these kinds of actions were retaliatory. After all, they were just words, and no one had been demoted, fired or had their jobs altered. Doesn’t retaliation mean that the terms and conditions of employment have been affected?

This past summer, the United States Supreme Court heard a claim by Sheila White, a forklift operator for Burlington Northern & Santa Fe Railroad Company.(BNSF) White was the only female in her department, and had complained about harassment by her supervisor. BNSF responded to the complaint by conducting an investigation and then suspending the supervisor for ten days, also requiring him to attend sexual harassment training. The roadmaster, who managed the worksite, informed White of the discipline to her supervisor, and immediately assigned her to a less desirable position, stating that “a more senior man” should have her job since it was less arduous. White filed a complaint of retaliation with the EEOC, and then filed another claiming that she had been placed under surveillance and that the roadmaster was monitoring her daily activities. Several days later, after a disagreement with her supervisor, the roadmaster suspended White without pay for insubordination. She was suspended for 37 days, before an internal grievance process determined that she had not been insubordinate and reinstated her with back pay. White filed a third retaliation charge with the EEOC based on the suspensions. Read the rest of this entry »


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