In January of 2013 the United States District Court for the Eastern District of Kentucky heard a case involving the FMLA and retaliation of the KCRA. (See Nicely v. East Kentucky Power Cooperative, Inc., 2013 WL 142430 (E.D. Ky.)). The plaintiff in this FMLA case began working for the defendant in 1992. In 2003 he was diagnosed with fibromyalgia. Id. She continued to work but between 2008 and 2010 she was absent many times. Id. She even got a doctor’s note saying that she was not incapacitated but could be expected to miss one day per month due to her sickness. Id.
On September 2, 1010 a coworker told his supervisor that he heard plaintiff say that he she wanted to kill another employee. Id. Plaintiff was suspended and then three weeks later was terminated. Plaintiff then found a Kentucky FMLA lawyer to sue, alleging FMLA and retaliation claims. Id.
This court hearing the motion for summary judgment granted it because plaintiff could not establish a prima facie case of interference or retaliation of her FMLA. As per the evidence, plaintiff did receive her FMLA and the defendant did articulate a legitimate, nondiscriminatory reason for her termination. Id.
The defendant never denied plaintiff any of her requests for time off work in relation to her sickness. Plaintiff admits this. So, this count was dismissed. This was not a very strong count brought on by her Kentucky FMLA lawyer.
As to the FMLA retaliation, to establish a case of retaliation under the FMLA she must show that 1) she was engaged in an activity protected by the FMLA, 2, her employer knew that she was exercising her FMLA rights, 3, she suffered an adverse employment action, and 4, a causal connection existed between the protected FMLA activity and the adverse employment action. Id. As stated before, based on the defendant’s legitimate defenses, and the fact that plaintiff could not show that the proffered reason is pretext for discrimination, this count too is dismissed. The defendant reasonably believed that plaintiff made the threat, and thus was justified in terminating her in this FMLA lawsuit.
Finally, as to plaintiff’s other allegations of retaliation, those too are dismissed because evaluations referencing her absenteeism also are not adverse employment actions. (cites omitted). An adverse employment action is a materially adverse change in the terms or conditions of employment because of the employer’s conduct. Examples are termination, demotion, decrease in pay, decrease in benefits, or other things along those lines.
As to plaintiff’s disability claim, in order to establish a prima facie case of discrimination based on a disability, “the plaintiff must show: 1) that she had a disability as the term is used under the statute, 3) that she was otherwise qualified to perform the requirements of the job, with or without reasonable accommodation, and 3) that she suffered and adverse employment decision because of the disability.” (cites omitted). Based on the previously stated arguments, plaintiff did not suffer an adverse employment action based on her disability. Further, defendant gave a legitimate nondiscriminatory reason for her termination that plaintiff was not able to rebut. Id. Accordingly, the Court granted defendant’s motion for summary judgment in this Kentucky FMLA and KCRA retaliation case.
If you have been the subject of a Kentucky FMLA and KCRA Retaliation case, please call and speak to a Kentucky FMLA and KCRA Retaliation lawyer at the Law Offices of Andrew Alitowski, P.A. at 888-ASK-ANDREW (888-275-2637) or contact us. We are available 24 hours a day, 7 days a week.
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