District Court in Maine Finds That An Employee Who Went Out For a Beer While on FMLA Leave Still Has Sufficient Standing to Bring Lawsuit Against Employer For FMLA Retaliation

Yarelyn Mena

In David Brady v. Bath Iron Works Corporation, Bath Iron Works Corporation (“Bath Iron Works”) terminated David Brady, a long time employee, for drinking a beer with a co-worker while on FMLA leave. Mr. Brady alleged that Bath Iron Work’s termination of his employment violated the Family Medical Leave Act (“FMLA”).

In 2014, Mr. Brady began to suffer from mental health issues, including depression and anxiety, and took intermittent FMLA leave. On June 23, 2015, Mr. Brady again took intermittent FMLA to undergo treatment related to his mental health issues.

Mr. Brady’s complaint alleges the following: on June 25, 2015, Mr. Brady began his regularly scheduled shift. Later that morning, he felt severe symptoms of stress and anxiety so immediately requested use of his intermittent FMLA. Bath Iron Works allowed him to leave early, as as he prepared to leave, he came across a co-worker who invited him to get lunch. Shortly after, Bath Iron Works learned that Mr. Brady was at a local restaurant and sent a labor relations specialist and legal specialist to go the restaurant to see if Mr. Brady was there. They observed Mr. Brady drinking a beer and took pictures of his car in front of the restaurant. Bath Iron Works industrial physician immediately contacted Mr. Brady’s physician, seeking “clarification” regarding the nature of Mr. Brady’s disabilities. Mr. Brady’s physician responded that work-related stress can aggravate Mr. Brady’s medical condition.

Mr. Brady returned to work the next day, unaware of the surveillance of the day before; however, security would not allow him to enter Bath Iron Works’ building. On June 29, 2015, Mr. Brady had a meeting with the labor relations management team and a union representative, who questioned him about his use of time during his intermittent FMLA leave. Mr. Brady was not asked about his mental health condition or how his condition related to FMLA leave. Bath Iron Works suspended Mr. Brady pending an investigation of FMLA abuse.

On July 8, 2015, the labor relations physician concluded: “Mr. Brady’s use of time was not consistent with the temporary approval granted by the [Bath Iron Works] office.” She reached this conclusion without further communication with Mr. Brady or his primary physician. Thereafter, Mr. Brady filed a lawsuit against Bath Iron Works alleging that his termination of employment was in retaliation for taking FMLA leave.

For an employee to establish a claim of FMLA retaliation, he must be prove that he (1) availed himself of a protected FMLA right, (2) was adversely affected by an employment decision and that (3) there is a causal connection between the protected conduct and the adverse employment action. With respect to the first prong, Mr. Brady claims that requesting and then taking FMLA leave was a protected FMLA right. Although Bath Iron Works argued that conduct inconsistent with the intended purpose of the leave was not protected, the court disagreed, holding that whether Mr. Brady’s conduct was inconsistent with FMLA is an issue of fact that cannot be resolved on a motion to dismiss. With respect to the second prong, Bath Iron Works conceded that Mr. Brady’s termination was adverse employment action. With respect to the third prong, the court found that the events that led up to his termination, including Bath Iron Works’ surveillance, prohibition of Mr. Brady from entering the premises, and failure to conduct a thorough investigation, showed a causal connection between Mr. Brady’s FMLA leave and termination. As such, the court determined that the allegations in Mr. Brady’s complaint sufficed to state a claim of FMLA retaliation.

If you think you have been discriminated or retaliated against for taking FMLA leave, contact The Harman Firm, LLP.

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