Restructuring a Job While on Leave Is Not an FMLA Violation

October 27, 2003 ( - Restructuring an employee's job while on leave does not interfere with a worker's Family and Medical Leave Act (FMLA) rights.

In granting summary judgment to the employer, US District Judge Margaret Kravchuk the US District Court for Maine determined the employer’s restructuring of the employee’s job, and s ubsequently the elimination of the restructured position, was not an interference of the employee’s FMLA rights.  

This hinges on the court’s determination of restoration and interference.   To make the determination of interference under FMLA, the court turns to Department of Labor (DoL) regulations that define interference as “not only refusing to authorize FMLA leave, but discouraging an employee from using such leave. It would also include manipulation by a covered employer to avoid responsibilities under FMLA.”   In this case the employer did not interfere with the employee’s right to take his full FMLA leave.  Noting that the employee’s absences constituted only about 11 workdays during a period of 41 to 44 weeks before he was laid off, the court said that “the concept of restoration seems to assume that the employee has been absent from the workplace and has returned.”

Turning to the questions of restoration, the court found restoration does not entitle an employee to “any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave,” Kravchuk said in the opinion.   Additionally, [the employee] performed his job during his intermittent leave period “essentially, on a full-time basis” and was terminated while taking intermittent leave, not after having returned, the court said.   Peculiar about this is that “[the employee] appears to have been actively employed in a continuous manner in the same position at the same pay throughout the period in question,” Kravchuk said in the opinion.

Thus, instead of a job restoration claim, the employee’s complaint should have been brought as a retaliation claim, because he argued that “an adverse employment action (layoff) was imposed on him because he was taking leave,”   the court reasoned.   However, in a retaliation claim, the employee has the burden of proving that an adverse employment action resulted from exercising FMLA rights.

In this respect, the employee failed to carry the burden and “Because [the employee] fails entirely to put forth any argument that might call into question the legitimate, non-discriminatory explanation [the employer] offers for his termination, [the court] treat[s] his FMLA retaliation claim as abandoned,” the opinion stated.

Case History

Joseph Dressler began working for Commtel in March 1996 as the company’s Human Resources Manager. In this capacity, he was in charge of Commtel’s Human Resources Department, having overall responsibility for the work of the Department, including “strategic planning” and other “company-wide policies and programs related to all aspects” of Commtel’s human resource needs.  

In August of 2000, Dressler’s spouse experienced a “reoccurrence” of ovarian cancer.   Originally diagnosed in an advanced stage in the summer of 1997, her cancer was put in remission following surgery and chemotherapy.   Due to the recurrence of her cancer, Dressler’s wife began a series of approximately 14 weekly treatments in the summer of 2000.   From September 2000 through the end of the year 2000, Dressler took intermittent FMLA leave amounting to between 15 and 20 half days in connection with his wife’s condition. Dressler’s boss, the company’s Chief Operating Officer (COO) was aware of this intermittent leave and never expressed any hesitation to let Dressler take the leave. In December 2000, Dressler learned that the treatment was not slowing the growth of the cancer and a new treatment regimen needed to be considered.

During this time, considerable changes were taking place in Commtel’s business and workplace that, among other things, generated demands for “organizational development.”   In July 2001, while Dressler was still taking leave on an intermittent basis, Commtel restructured its Human Resources Department by simultaneously creating a Director position and hiring Leslie Harkins to fill the new position, effectively replacing Dressler as the head of the Department.    The new arrangement required Dressler to report to the new director, rather than to the company’s COO.

Following her hire, Harkins assumed overall responsibility for the Human Resources Department and Dressler’s duties were then limited to certain compensation and benefits projects.   Then in October 2001, Commtel announced a round of layoffs in light of serious financial problems and a recognition that the company’s foray into Internet services was turning out to be a failure. Among the layoffs was Dressler’s position.

The case is Dressler v. Community Service Communications Inc. , US District Court of the District of Maine, Civil No. 02-171- B-K.