Retaliation for Job-Protected Absences

By James Denis

Jun. 27, 2008

In 1997 Deborah Lewis became a bookkeeper for Freeburg (Illinois) Community School District No. 70. In 2004, school superintendent Rob Hawkins reduced Lewis’ hours and allowed her to occasionally work from home to care for her terminally ill mother. At an October 2004 school board meeting, Hawkins told the board that Lewis’ leave was an inconvenience to the school and that, while she had performance problems, the district could face Family and Medical Leave Act liability if she were terminated. At a November 2004 board meeting, members described the FMLA as “ludicrous,” and instructed Hawkins to build a case against Lewis.

   In March 2005, Lewis received a mixed performance review indicating issues with her job performance during the period she was working a reduced schedule. Later, Lewis received a letter giving her the option to resign or accept a demotion because she “missed too much work to meet the essential functions of [her] present assignment.”

   Lewis filed suit in the U.S. District Court for the Southern District of Illinois under the FMLA and state law. The court granted summary judgment in favor of the school district, finding insufficient evidence to state a claim. Lewis appealed.

   The U.S. Court of Appeals for the 7th Circuit reversed on Lewis’ FMLA claims, stating that she need only prove “protected conduct was a substantial or motivating factor” for her demotion. There was sufficient evidence to infer that “while fully cognizant of their obligations to Lewis under the FMLA, [the board] decided not to inform her of those rights” but instead build a case against her in order to justify her termination. Lewis v. School District #70, 7th Cir., No. 06-4435 (4/17/08).

    Impact: Adverse action against an employee for taking job-protected FMLA leave is unlawful. Employers are advised that eligible employees should be afforded FMLA leave, which may include a reduction to an employee’s workload.

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