Supervisor's Comments After Employee Seeks Leave for Hysterectomy Creates Viable FMLA Claims

by Franczek Radelet P.C.

fired.jpgRemember a few months back when I warned employers to be wary of eliminating the position of an employee who days earlier requested several weeks off for surgery?

Let me take that advice one step further: if an employee informs you that she needs leave to undergo a hysterectomy, don't tell the employee it's "not a good time to take leave," and then urge her to read the book titled, No More Hysterectomies.

File this one under the category of "Employers do inexplicable things that cause them to be sued." Here's a brief summary of the rather interesting facts: Brenda Drew, a stellar employee of 15 years, informed her supervisor at Quest Diagnostics that she would need a leave of absence to undergo a hysterectomy. In response, her supervisor allegedly made the above comments.

While on FMLA leave, Drew found out that her domestic partner had cancer. Shortly thereafter, while Drew was still on leave, a Quest Human Resources staff member contacted Drew to inform her that she would be terminated in a reduction-in-force after Quest lost a significant client contract. Unfortunately, the HR generalist continued talking, suggesting to Drew that the termination might be a "blessing in disguise," as she would have more time to take care of her partner, and that, in any event, Drew "would not be able to give 100% to her job anyway."


Despite these untimely and inexplicable comments, they didn't by themselves do Quest in. Even more compelling to the court was the manner in which Quest chose employees to be terminated as part of the RIF. Drew wisely pointed out that discipline issued to another employee was not used as part of the objective criteria of the RIF, but discipline issued to Drew was one of the factors in her dismissal. This evidence of disparate treatment created doubt about Quest's explanation that it chose employees for the RIF based on performance evaluations and discipline. From the court's perspective, this evidence -- along with the various comments made to Drew -- was enough to allow Drew to present her FMLA claims to a jury. Drew v. Quest Diagnostics, Inc. (pdf)

Insights for Employers

Whether it is negative comments made about an employee after FMLA leave is requested or rating performance differently as a result of FMLA leave (when there is no evidence to indicate as such), employers fail to dismiss a case short of trial typically for the most obvious of reasons. I write the obvious here, but bear with me:

  1. When employers use specific, objective criteria in a RIF (e.g., performance reviews, recent discipline, etc.) as they should, these criteria must be applied consistently to examine every employee subject to the RIF. Where exceptions are made (such as counting discipline for some and not for others), they must be documented thoroughly and be defensible so that a court (and potentially, a jury) later can understand, distinguish and accept them. Treating employees in similar situations in a different manner is a recipe for disaster. Assistance of in-house or outside employment counsel is a must in these instances.
  2. Mind your communications. As the court pointed out, Quest ultimately may convince a jury that Drew's discipline was compelling and the cause for the RIF. To be clear, by all accounts, Quest disputes that these comments were ever made, and it will have the chance to prove its side at trial. However, alleged comments of the kind here by Drew's direct supervisor and Quest's HR generalist give a reviewing court such an easy basis to allow a case to go to a jury. In any event, these are not the kind of communications an employer wants to present to a jury. Enough said.
  3. One issue that troubled me about the court's decision was its suggestion that discipline of an employee with a spotless track record may itself be evidence that something is afoul. I don't buy into this, but it's not the first time a court has provided this kind of reasoning. Does it mean that long-term, stellar employees are untouchable? Surely not; however, in light of decisions like these, employers are well-advised to review discipline of these employees closely to ensure something is not amiss.
  4. Please, please, please train your employees on how to effectively and lawfully manage leaves of absence under your personnel policies and the law. (Thanks for the suggestion, Stacy S!) Investing a couple hundred bucks now to conduct effective FMLA training will maximize your chances of saving tens of thousands when the real life situation presents itself.


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.