The Family and Medical Leave Act allows employees to take reasonable leave for certain reasons spelled out in that Act.  The FMLA includes prescriptive provisions – which create a series of substantive rights, consisting primarily of 12 weeks of unpaid leave – along with proscriptive provisions, which bar employers from penalizing employees and other individuals from exercising rights granted under the FMLA.  The 5th U.S. Circuit Court of Appeals recently addressed the issue of whether the anti-retaliation provisions of the FMLA automatically protect the co-worker/spouse of an employee from retaliation, and held that it does not.  Elsensohn v. St. Tammany Parish Sheriff’s Office, 5th Cir., No. 07-30693, June 6, 2008

Lawrence Elsensohn is employed by the St. Tammany Parish Sheriff’s Office as a law enforcement officer, in the rank of sergeant.  His wife, Wendelle, also had been employed with that Office, but left her employment after bringing – and settling – an FMLA complaint against that employer.  According to Elsensohn, he had not been involved in his wife’s FMLA claim, other than to provide “moral support” to her.  Although Elsensohn would have been a witness on his wife’s behalf, he did not have to testify, because the case settled in or around October 2004.

In early 2005, Elsensohn alleged that he was being harassed by the Warden of the St. Tammany Parish Jail, and that the harassment was related to his wife’s FMLA claim.  After he reported to Internal Affairs about the harassment, Elsensohn was assured that there would be no further problem.  In fact, during the following months, Elsensohn received excellent performance reviews.  However, when Elsensohn applied for a number of promotions in 2006, he was denied in each instance.  In response to his queries to his supervisor, Elsensohn was told that he would not be receiving a promotion of any kind, and that his chances for advancement were “closed off.”  Shortly thereafter, Elsensohn was involuntarily placed on a night shift, losing his holiday and overtime pay opportunities.  In that position, he also was precluded from seeking secondary and supplemental employment.

In December 2006, Elsensohn filed a lawsuit against the Sheriff’s Office and two individual defendants, alleging that the defendants’ actions interfered with, restrained, and denied his rights under the FMLA.  He alleged that the actions were taken as a result of his association with his wife, who had opposed the defendants’ unlawful practices related to her FMLA rights.  Specifically, Elsensohn relied on a section of the FMLA that makes it unlawful for an employer to discriminate against an individual because that person “has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right” provided under the FMLA, or has “testified, or is about to testify” in any legal proceeding under the Act.

The defendants moved to dismiss the claims, arguing that Elsensohn’s action was a purely derivative claim, which is not permitted under the FMLA.  Further, the defendants argued that Elsensohn did not testify for his wife, nor was “about to testify” on her behalf, since her claim had been settled.  The district court agreed with that argument and dismissed Elsensohn’s FMLA claim.  The Fifth Circuit upheld that dismissal of the claim, stating that Elsensohn did not satisfy the literal criteria set forth under the statute.  First, he had not provided information of any kind in his wife’s FMLA action; in fact, he averred that he had “attempted not to involve himself in his wife’s FMLA claim.”  Similarly, he never had testified in any proceeding related to his wife’s claim, and was not “about to testify,” since her suit was settled prior to the actions of which Elsensohn ultimately complained.

This case may have been decided on a hyper-technical interpretation of the FMLA, but it provides a reminder to employers that the FMLA prohibits retaliation against those who assist others in FMLA claims through evidence and testimony.  While courts typically avoid broadening the protections of anti-retaliation statutes through judicial interpretation, employers should recognize that these claims are decided on a case-by-case basis.  Had there been evidence of Elsensohn’s participation in his wife’s FMLA legal action, the case may have gone very differently.  A careful review of the factual issues associated with retaliation claims is critical prior to taking any adverse employment action against an individual associated with someone who has brought an FMLA claim against the employer. 


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