Dads Need Lovin' Too! Father Can Proceed with FMLA Retaliation Claim in "Macho Culture" Lawsuit

by Franczek Radelet P.C.

macho.jpgDads need lovin' too. So says a federal court judge, who has allowed a father to proceed on his FMLA retaliation claim after the employee alleged that his employer's "macho man" culture was a culprit in his ouster.

As I detailed in a previous blog post, Ariel Ayanna was an attorney at a Boston-based law firm. By all accounts, he had two years of solid performance evaluations and a $30,000 bonus in the year prior to his termination. Then, he took four weeks of leave to care for his wife after the birth of their child and to bond with his newborn. (The facts suggest he needed to care for his wife, who suffered from a variety of serious health conditions.)

When Ayanna returned to work, it wasn't the same. He claims the firm assigned him less work and ridiculed his care-taking ways. At the time of his termination, the firm even shared that his "personal" issues constituted one of reasons for his ouster. Ouch.

In refusing to dismiss Ayanna's FMLA retaliation claim, the court clung to the statement above, suggesting that a "reasonable jury could find that the comment was directed at Ayanna's recent need to take FMLA leave." Also noted as an inconsistency in the employer's story: its claim that Ayanna's low client billable hours also supported his termination. The problem? There was evidence that others missed the hours mark, too, and did not suffer the same fate as Ayanna.

In Ayanna's complaint, he claimed that the firm maintained a "macho culture" where time off to attend to fatherhood and being an "engaged" dad were seen as weak and undesirable. However, in a nod to the employer, the court bounced this claim, finding that it was too vague to support a sex discrimination claim, which the court dismissed. Ayanna v. Dechert LLC (pdf)

However, the FMLA retaliation claim now remains for a jury to consider. The evidence precluding dismissal falls into two usual taboo categories that often trip up an employer when it comes to retaliation claims: insensitive comments that could be viewed as discriminatory and an inconsistent application of discipline to those outside the protected class.

Insights for Employers

As always, there are lessons to be learned by employers. The court's decision reminds us of at least two best practices:

  1. As I have stated before, loose lips sinks ships. If one of the reasons for his termination was indeed his "personal" issues -- that is, taking care of his wife with a serious health condition and bonding with his child -- it created a tremendous risk of liability for the employer. Note to managers, supervisors, owners, HR professionals and anyone else in a positive to effect a personnel decision: Stop saying stupid stuff! I've detailed all too often lately stories about employers (here and here) who now face a jury on their FMLA claims because they allegedly made foolish remarks in conjunction with a termination decision. Don't do it, and train your managers and supervisors to do the same. This case serves as yet another example of how easily a court will send a case to a jury as a result of one indiscreet comment.
  2. Apply disciplinary criteria consistently. If you decide that a performance deficiency is particularly troublesome and requires termination, look around the room before lowering the boom. Are other employees (especially those who have not recently returned from FMLA leave) guilty of the same problem? If they were not subject to similar discipline or their situation cannot be distinguished in some meaningful way, employers again create significant risk of liability. Courts don't like it, and juries are even less forgiving.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

Written by:

Franczek Radelet P.C.

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.