Extreme retaliatory behavior toward vulnerable employee after medical leave supports tort claim
 July 30, 2013

In a recent opinion, a federal court held that an employee discharged from a retailer soon after returning from medical leave stated a claim for intentional infliction of emotional distress, which is often a difficult claim to prove. [Brown v. Casey's Retail Co.] Brown, alleged that after she returned from leave under the Family and Medical Leave Act (FMLA) for a serious medical condition requiring a hysterectomy, she was harassed and fired in retaliation for exercising her leave rights. Brown's lawsuit alleged that even though the store manager knew she suffered from a serious medical condition, the manager complained to her before she left about the burdens her leave would create on other staff. Brown further alleged that, when she returned from leave, her manager brought her to tears with her negativity and harassing language, knowing she was in a weakened state. She claimed that she was then fired in retaliation for having taken leave, and suffered profound emotional distress, requiring medical attention and medication with damages exceeding $100,000.

The court refused to dismiss the lawsuit, ruling that Brown alleged facts that, if believed, would establish that her employer engaged in "truly extreme and outrageous conduct." The court noted that, although the tort does not provide a remedy for "mere insults, indignities, threats, annoyances, petty oppressions or other trivialities" in the workplace, one factor that influences the extreme and outrageous nature of the conduct is the degree of power or authority that the actor has over the plaintiff. The court focused on Brown's allegations that the store manager knew Brown was in a weakened mental and physical condition yet used her power as manager to abuse Brown. Because the manager allegedly knew that Brown was particularly susceptible, the manager's alleged behavior was more extreme and outrageous than might otherwise be considered merely rude, abrasive or inconsiderate.

Prevention Strategies: The decision highlights how important it is for managers to be very careful how they communicate with employees who are taking FMLA leave. Companies that have a Human Resources manager or department should instruct managers to direct all inquiries to Human Resources. Further, managers need to be careful to treat employees no differently when they return from FMLA leave to avoid a claim of retaliation. Certainly, the decision to terminate an employee's employment shortly after a return from FMLA leave should be reviewed carefully to ensure it is justifiable and the justifications are well documented.

Patricia S. Eyres (Patti) is Managing Partner of Eyres Law Group, LLP. She is a Phi Beta Kappa graduate of Stanford University and earned her law degree from Loyola Law School, cum laude in 1977. Patti calls herself a "recovering litigator," who knows first-hand the value of paying attention to prevention. After spending 18 years devoted exclusively to defending companies in the courtroom, she resolved to help business leaders recognize potential legal landmines before they explode into lawsuits. She brings a unique and practical perspective to the critical legal issues impacting the workplace. As CEO/Publisher of Proactive Law Press, LLC, , Eyres supervises the production and publication of books, training materials and educational products for business owners, public school administrators, front-line leaders, HR and Risk Managers. She can be reached at peyres@eyreslaw.com or 480-607-5847.


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