Switch in Job Duties After FMLA Leave May Constitute Retaliation

Facts: An employee of the New York City Housing Authority (NYCHA) began her career in October 1979 as a secretary. Twenty-five years later, she was diagnosed with multiple sclerosis, and in November 2006, she began an approved leave of absence under the Family Medical Leave Act (FMLA) to deal with her condition. She returned to work in late February 2007.

She claimed that upon returning to work, her supervisors retaliated against her for taking that FMLA leave. Specifically, she claimed that her job duties and responsibilities were reduced and that her job location changed; she maintained that these actions effectively stripped her of all her responsibilities and that she was moved to a different floor and isolated from all other employees. She also alleged that her supervisor did not approve her requests for time off because he thought she should save her vacation and sick leave to enable her to take off days in the future when she became ill again.

The employee further claimed that after she returned from her medical leave, NYCHA denied her certain privileges. For example, she alleged that she was not allowed to leave her isolated work area to take lunch breaks without prior approval from her supervisor, whereas other employees were allowed to take lunches and breaks without prior approval, and when she was allowed to take a break, she was given only 15 minutes, while other employees received a full hour. In addition, she claimed that she requested certain days off to attend important family functions and that she was denied those vacation days because she had previously taken FMLA leave. Finally, she asserted, her supervisor berated her for having taken off from work to attend her daughter's graduation.

When the employee decided that she could no longer deal with the daily ongoing harassment from her supervisor, she left work that day and has never returned. She sued NYCHA, claiming that this harassment amounted to constructive discharge on account of her disability. NYCHA asked the court to dismiss the case.

Decision: The court sided with the employee, ruling that she could present her case against the housing authority.

Reasoning: The federal district court ruled that the employee clearly alleged sufficient facts that make her retaliation claim not only possible, but plausible. Specifically, the court noted, she alleged that her job duties and responsibilities were reduced when she returned from FMLA leave, that her job location changed, and that she was stripped of certain privileges that she had before taking FMLA leave—privileges that other employees continued to hold after she returned to work.

The court further noted that, to document her claim of retaliation, she wrote a letter to NYCHA's Chief Information Officer in which she stated that she was “disturbed by her diminished responsibilities following her FMLA leave,” and that she had requested a reassignment “more commensurate with her experience and abilities.” That letter plausibly constitutes opposition to unlawful employment practice and makes out a possible case of retaliation by NYCHA. The court, therefore, dismissed the housing authority's motion to dismiss the case.

• Harper v. New York City Housing Authority, November 2009