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Nov 20, 2014

By Eric B. Meyer

Telling an employee returning from open-heart surgery, “Don’t die at the desk” is bad. Very bad.

Also, threatening to drag that employee outside and throw him in a ditch isn’t good either.

Yeah, that may fracture a law or two. I’m thinking the Family and Medical Leave Act.

Heck, even the Taliban would frown on that.

You can’t interfere with an employee’s FMLA rights

Terry Baier worked at an auto dealership in Illinois. In 2011, he suffered chest pains and eventually required open-heart surgery. He requested and was provided leave under the Family and Medical Leave Act.

Mr. Baier alleges that, when he returned to work with medical restrictions (including a reduced leave schedule), he was repeatedly asked when he would be “100 percent,” and later told, “don’t die at the desk or I am going to drag you outside and throw you in the ditch next to the road.”

Although never taken outside and thrown in a ditch, Mr. Baier claims that he was threatened with demotion and, then, fired.

So, he brought claims of FMLA interference and retaliation, among others, against the dealership.

The dealership may have interfered with the plaintiff’s FMLA leave rights.

Well, you think?

Fired for profanity at work, or was it FMLA retaliation?

The FMLA permits employees to take leave on an intermittent basis or to work a reduced schedule when recovering from a serious health condition. Here, when Mr. Baier alleges that when he complained to his manager about having to work until midnight, the manager replied, “that’s your job.”


Between that and the whole not dying at your desk thing, the court (in Baier v. Rohr-Mont Motors) didn’t have to reach too far to conclude that Mr. Baier has a right to a jury trial on his FMLA interference claim.

How about FMLA retaliation? Yep, could have some of that too.

The FMLA makes it unlawful to allow an employee’s FMLA leave to motivate an employment action taken against him, although the auto dealership claimed that it fired Mr. Baier for using profanity at work.

What the court said

Mr. Baier, on the other hand, wisely played the “ditch dragging death” card, to convince the court that he should get a trial on FMLA retaliation too:

The facts in the light most favorable to Baier show the following: On November 5, 2011, a little over a week after Baier returned to work and shortly after Barrett filled in as his supervisor, Barrett told him, “don’t die at the desk or I am going to drag you outside and throw you in the ditch next to the road.”…Barrett also told Bob Jackson that “[t]here was no F-ing way that Terry Baier was going to drop dead on [my] watch at Oak Brook Toyota.” If he did, Barrett would take Plaintiff across the street to the country club and put him there.

Given that Barrett was the sole decision-maker in firing Baier, the content of Barrett’s remarks, and their close temporal proximity to Baier’s termination, they could raise an inference that Oakbrook Toyota terminated Baier because he exercised his rights under the FMLA.”

Not really a close call, is it?

Employer takeaways

Please, train your supervisors and managers not to be total jerks to folks returning from FMLA. Heck, start with reminding them that there is a Family and Medical Leave Act.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

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