Employer Prevails on a Family and Medical Leave Act (FMLA) Retaliation Employment Law Claim

In the business law, employment law and employment litigation case of Menekse vs. Harrah’s Chester Casino & Racetrack, PICS Case No. 14-1010 (E.D.PA June 16, 2014) the Honorable L. Felipe Restrepo ruled that while a discharge one week after making a request for Family and Medical Leave Act (FMLA) leave was sufficient to prove a prima facie case of FMLA retaliation, employer’s legitimate reason to discharge worker with disciplinary problems did not constitute a pretext for FMLA retaliation.

In 2007, defendant hired Nihal Menekse as a beverage server at a casino. Menekse received disciplinary infractions 15 times for incidents that ranged from using her cell phone on duty to allegedly over-serving alcohol to a customer. Menekse received a final written warning and was informed that another disciplinary infraction would result in discharge.

In March 2011, a casino dealer allegedly asked Menekse, who was Muslim, if she was a bomb-carrying terrorist. The dealer’s supervisor reported the dealer to human resources. Menekse discussed the incident briefly with human resources and returned to work. The following month, another casino dealer allegedly asked Menekse, who was from Turkey, “Are you going to be cooked on Thanksgiving?”

Menekse and her child suffered from medical conditions and Menekse took FMLA leave 22 times. Menekse allegedly was away from work six times without approval between April 22 and June 30, 2011, because her FMLA requests had been denied.

In June 2011, another beverage server allegedly ventured into Menekse’s territory and took beverage orders from Menekse’s customers. Menekse was irate. On July 5, Menekse allegedly pointed at the other beverage server and issued a threat, if the other worker entered Menekse’s territory again. Although Menekse denied that she threatened the other worker, the other worker complained that she did not feel safe. Three workers documented the alleged threat in writing. Defendant discharged Menekse the following day.

Menekse sued and alleged discrimination and retaliation, in violation of the Family and Medical Leave Act and Title VII of the Civil Rights Act of 1964.

To prevail on her Title VII retaliation claim, Menekse had to prove: that 1) she engaged in protected activity; 2) she suffered an adverse employment action; and 3) a causal connection exists between the protected activity and the adverse employment action. Menekse failed to allege a prima facie case of Title VII retaliation. Even if her discussion with human resources about the casino dealer’s bomb-carrying terrorist remark in March 2011 constituted protected activity, a reasonable jury could not find a casual link existed between that incident and Menekse’s discharge in July.

“Where the temporal proximity between the protected activity and the adverse action is unusually suggestive, it is sufficient standing alone to create an inference of causality,” pursuant to Butler v. BTC Foods Inc., a 2014 decision of the Eastern District of Pennsylvania. Because Menekse was discharged a week after she requested FMLA leave, she alleged a prima facie case of FMLA retaliation.

Defendant offered a legitimate, nondiscriminatory rationale for discharge, because three individuals documented in writing their allegations that Menekse cursed at and threatened a co-worker. A reasonable jury could not find that defendant’s legitimate reason for discharge constituted a pretext for FMLA retaliation. The court granted judgment to defendant.

Reference: Digest of Recent Opinions, Pennsylvania Law Weekly, 37 PLW 618 (July 1, 2014)

Filed Under: Employment Law: Employment Litigation, FMLA, and Retaliation Termination

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