Replacement After Medical Leave Can Lead to FMLA Liability

By John T. Ellis Jan 30, 2018

​Replacing an experienced woman with a less experienced man two months after she returned from medical leave for eye surgery can support claims for Family and Medical Leave Act (FMLA) retaliation, according to the U.S. District Court for the Eastern District of Michigan.

The plaintiff began her career with Dow Corning Co. in 1986. During her employment, she received several promotions and spent 10 years in marketing with Dow's Industrial Assembly and Maintenance (IAM) segment. In 2009, she left her marketing role in IAM to become a business center analyst, but about four years later, a manager asked the plaintiff to return to IAM marketing. After the manager mistakenly informed the plaintiff that her business center analyst position was being eliminated, the plaintiff accepted a market leader role in IAM in January 2014. The manager provided generally positive reviews of her performance.

In August 2014, while traveling on business, the plaintiff was accidentally struck on the head by another passenger's luggage, causing a detached retina that required immediate surgery. When the plaintiff informed the manager about the accident, the manager replied, "You're not going to pin this on me." The manager then allegedly instructed the plaintiff to postpone her surgery. The plaintiff refused and had surgery the following day. She was off from work for a recovery period of approximately three weeks. Although the plaintiff did not discuss FMLA leave with anyone else at Dow and was not provided FMLA paperwork, Dow allowed her the necessary time off.

[SHRM members-only toolkit: Coordinating Leaves of Absence]

When the plaintiff returned to work, the manager purportedly no longer met with her regularly. The manager also excluded the plaintiff from social events with co-workers, moved her from a large office to a cubicle, began questioning her work, was uncooperative when she requested a larger computer monitor due to ongoing retinal issues and ridiculed her vision problems during a meeting, according to the plaintiff.

Approximately two months after her return to work, the plaintiff was informed that her market leader position would be eliminated. She was given 60 days to find another position with Dow and subsequently obtained a temporary position in another Dow business unit. A younger male employee with less marketing experience—and no marketing experience in IAM—was assigned to the market leader role in IAM and took over all of the plaintiff's former duties with a salary $40,000 per year higher than hers. The plaintiff filed a complaint with Dow's HR department, which found no evidence of discrimination. After one year, the plaintiff's temporary assignment and her employment with Dow ended.

She sued Dow, alleging retaliation under the FMLA and Michigan workers' compensation law, as well as disability and gender discrimination under Michigan law. But none of the Dow managers involved in the plaintiff's removal from the IAM market leader role took responsibility for the decision.

Dow moved for summary judgment on each count of her complaint, and the district court found in favor of the plaintiff. The timing between her injury and leave of absence and her removal as IAM market leader was sufficient to place her retaliation claims before a jury. The judge explicitly rejected Dow's contention that her position had been eliminated, finding that the assignment of her identical role and job duties to a younger male with significantly less marketing experience could provide sufficient basis for a jury to find in the plaintiff's favor on her discrimination claims.

Schram v. Dow Corning Corp., E.D. Mich., No. 16-CV-14312 (Jan. 8, 2018).

Professional Pointer: When an employer considers the discipline, transfer or separation of an employee who has recently returned from medical leave, it should first make sure that the action is supported by objective evidence. It may also be wise for employers to have potential adverse employment actions reviewed by a third party who has not been involved in managing the affected employee's performance.

John T. Ellis is an attorney with Ufberg & Associates, LLP, the Worklaw® Network member firm in Scranton, Pa. 

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