- An isolated critical comment about an employee's Family and Medical Leave Act (FMLA) leave did not amount to retaliation under the law, the 6th U.S. Circuit Court of Appeals ruled in Groening v. Glen Lake Community Schools, No. 17-1848 (March 12, 2018).
- Former Glen Lake Community Schools superintendent, Joan Groening, took six weeks of medical leave, followed by intermittent leave to care for her mother. A board member expressed disappointment that Groening had missed meetings and was forcing the board to work around her schedule. Shortly thereafter, the board requested that she provide a breakdown of the leave she had taken that school year. Finding that she had already been out for 12 weeks, the board said it was hesitant to approve her travel plans for an upcoming conference. Groening resigned and filed suit.
- A district court dismissed her claims and on appeal, the 6th Circuit said that the complaints did not amount to an adverse employment action (here, alleged constructive discharge). "[A]n employer’s criticism of an employee does not amount to constructive discharge—especially when the employer’s criticism is limited to a few isolated incidents, as it was here," it said.
Employers certainly need to be careful not to engage in FMLA retaliation, but courts have set a fairly high bar for employees to prove such claims.
For example, the Groening court pointed out that in Savage v. Gee, 665 F.3d 732 (6th Cir. 2012) and Smith v. Henderson, 376 F.3d 529 (6th Cir. 2004), calling an employee “incompetent” and a “whiner” in front of other employees wasn't enough to establish constructive discharge. Likewise, in Cleveland v. S. Disposal Waste Connections, 491 F. App’x 698 (6th Cir. 2012), the court found that disparaging comments isolated to a few incidents and by a few individuals did not alter working conditions.
Still, it's important to train managers and supervisors on the FMLA's requirements. And if you find it difficult to communicate the law's requirements, it may be worth considering shifting your training language to discussions about "FMLA discrimination."