Removal From Key Account and Placement on Performance Improvement Plan Not “Adverse Employment Actions,” New Jersey District Court Holds

In order to state a retaliation claim under the federal Family and Medical Leave Act (FMLA), a plaintiff must establish that his employer took an adverse employment action against him that was causally related to his FMLA leave. In Berridge, a former senior account manager alleged that he suffered such retaliatory adverse employment action eleven months after taking FMLA leave in the form of removal from a key account, placement upon a performance improvement plan (PIP), and ultimately, termination. Berridge v. Nalco Company, Civ. A. No. 10-3219 (D.N.J., Jan. 30, 2014). In an interesting holding, the court held that neither the account removal nor his placement on the PIP constituted materially adverse employment actions. According to the court, the account removal did not alter the plaintiff’s title, salary, benefits, expense account, and automobile entitlement and the PIP simply tracked his job description and thus “comprised of directives relating to [his] preexisting responsibilities.” Thus, the court rejected his FMLA retaliation claims based upon the PIP and account removal. While the court held that his discharge did constitute an adverse job action, the plaintiff nonetheless was unable to rebut the employer’s legitimate reason for terminating his employment—poor performance.