Court: Supervisor’s actions led to FMLA claim

Sandi had worked for the company for many years. Because of her fibromyalgia and depression, she occasionally took FMLA leave. She also was provided the accommodation of a stool or chair when she needed to work where she would otherwise be standing. Debbie, her supervisor, seemed to have some issues with the situation, given the following examples:

• Debbie often refused to honor the accommodation, saying "there's nothing wrong with you."
• When Sandi told Debbie that she was diagnosed with depression, Debbie accused her of "faking."
• Sandi once texted Debbie that she had to go home to rest, to which Debbie responded "[d]on't start with me."
• During one of her leaves, Debbie texted Sandi "U hv [sic] real issues."

The issue intensified when Sandi was caught on surveillance using $2.50 worth of coupons that were for customers only. Sandi was called into a meeting with, among others, an assistant manager, regarding the issue, where Sandi denied the theft. While the manager was not in the meeting, the assistant manager told Sandi she was terminated, and asked that she repay the $2.50.

Terminations, however, had to be approved by the manager. Sandi went to the manager about the decision but was told it was "out of her hands." Sandi sued, in part claiming that she was retaliated against because she took FMLA leave, even though the termination was four months after she last took leave.

The court indicated that the timing of the termination was only one consideration. It also pointed to the conduct of the supervisor during those four months. Debbie had displayed a general hostility toward Sandi during those months with respect to her condition.

Other evidence that played against the employer included:

• An argument that the company had a zero-tolerance policy regarding employee theft but could not find the policy.
• Sandi claimed that other employees used the coupons but were not terminated.
• The employer also couldn't point to anyone who actually made the termination decision. The assistant manager denied it, and the others in the meeting indicated they had no authority to do so. Such inconsistencies can be seen as evidence of causation.

Therefore, the theft could be seen as pretext. All this was enough to allow the FMLA (and the ADA) claim to proceed.

Friends, train your supervisors on the FMLA (and the ADA) particularly what actions — such as making demeaning statements — can risk claims.

Lugo v. Walmart, Inc., Eastern District PA, No. 2:20-cv-05832, July 22, 2022.

Key to remember: Supervisors are often a weak link in the compliance chain. Their words and actions can not only be mean, but they can also be costly to a company.