The Family and Medical Leave Act of 1993 (FMLA) guarantees that eligible employees will be provided leave to take care of a loved one with a serious medical condition. The FMLA also guarantees that upon return from FMLA Leave, the eligible employee will get his or her same or equivalent job back. Unfortunately, this doesn’t always happen.
Sometimes, an employee returning from FMLA leave may be given the same job, but in name only. Due to the nature of the job and actions of her employer, the returning employee is provided the same position, but certain lucrative opportunities may no longer be available. When the returning employee understandably fails to perform to her employer’s satisfaction, she’s disciplined and eventually fired.
It’s hard to believe all of this can happen to an employee who took pregnancy leave as provided for by the FMLA and her employer’s policy, but it happened to one particular employee named Kimberly Isom.
Isom v. JDA Software, Inc.
Background
Isom worked as an account manager for JDA Software, Inc. Her job consisted of selling JDA’s software to both existing and prospective customers. Isom, as well as other account managers, received commissions based on software sales.
Per JDA policy, an account manager’s existing customers could be reassigned to other account managers. However, an account manager’s prospective customers could not be reassigned to another account manager unless the account manager losing the prospective customers was fired due to performance-related problems.
JDA allowed for pregnancy leave, but this policy had never been actually used until Isom became pregnant. When Isom took her pregnancy leave, JDA was uncertain exactly how to deal with her existing and prospective customers, as well as how Isom’s commissions would be paid out.
Since Isom was on leave for 11 consecutive weeks, her supervisor decided to reassign Isom’s existing and prospective customers to other account managers. When Isom returned from pregnancy leave, she was given her same job back with the same commissions pay structure. However, she was assigned different existing and prospective customers instead of the ones she had before taking pregnancy leave.
Isom requested her previous existing and prospective customers back since her new ones weren’t as profitable. JDA refused, believing that Isom’s previous customers were either no longer viable or that the customers had established a relationship with a new account manager such that switching the customer back to Isom would jeopardize any potential sales.
Due to being assigned different existing and prospective customers, Isom was unable to meet her sales quota. As a consequence, Isom was disciplined by being placed on a “performance improvement plan,” which meant that the employee had to meet certain sales goals by a certain period of time. Before Isom could meet those sales goals by the deadline, she was laid off.
Believing she was the victim of unfair and discriminatory workplace practices, Isom filed a charge, or complaint, with the Equal Opportunity Employment Commission (EEOC) and eventually sued JDA alleging pregnancy discrimination, retaliation under the FMLA and Title VII of the Civil Rights Act of 1964 (Title VII), FMLA interference, and several other federal and state law claims.
JDA requested that the court dismiss all of Isom’s claims. The court concluded that all of Isom’s claims should be dismissed, except her FMLA retaliation claim. We will focus on Isom’s pregnancy discrimination, retaliation, and interference claims in this blog.
Isom’s Pregnancy Discrimination Claim
Isom could prove pregnancy discrimination in two primary ways. The first was with direct or circumstantial evidence of pregnancy discrimination. As with many other similar plaintiffs, Isom could not provide direct or circumstantial evidence. However, Isom wasn’t completely out of luck, as she could resort to the more often used “burden shifting” framework to prove her case. Unfortunately for Isom, she was unsuccessful in surviving the burden shifting.
Under the burden shifting requirements, Isom had the initial burden of proving a prima facie case for pregnancy discrimination. She successfully did so by submitting evidence that she:
- was part of a protected class (pregnant women),
- was capable of fulfilling her job duties,
- suffered an adverse employment action (she was disciplined for not meeting her sales quotas), and
- nonpregnant account managers were treated more favorably than Isom because they weren’t placed on a performance improvement plan if they didn’t meet their sales quotas.
JDA now had the burden of showing it had a legitimate and nondiscriminatory reason for treating Isom differently. JDA met this burden by explaining that it had to take away Isom’s customers during her extended absence to get sales finalized and that JDA couldn’t give Isom back her previous customers because they were either dead ends or so close to closing a deal with another account manager that transferring them back to Isom could cancel the sale.
Because the court concluded that JDA met its burden of showing a legitimate and nondiscriminatory reason for treating Isom the way it did, the only way for Isom to continue her pregnancy discrimination claim was to show that JDA’s reason was a pretext or cover story to hide the true reason for treating her differently. Since Isom was unable to prove that there was a pretext, her pregnancy discrimination claim was dismissed.
For more reading on pregnancy discrimination and how this burden shifting works, please read our Huffington Post article “Why Young v. UPS Is a Big Win for Pregnant Workers.”
Isom’s Retaliation Claims
Isom’s retaliation claims under the FMLA and Title VII were thrown out because she could not prove a causal connection between a protected activity and an adverse employment action. Basically, Isom could not prove that JDA retaliated against her because Isom engaged in a protected activity.
A protected activity is an action that is legally protected. In Isom’s case, it was complaining about not having the same customers upon her return from pregnancy leave and filing a charge with the EEOC. An adverse employment action is something negative that is imposed on an employee, such as Isom being fired or being placed on the “performance improvement plan.”
This wouldn’t be the first time an employee’s retaliation claim failed for not proving a causal link between a protected activity and an adverse employment action. Check out our recent blog post titled “Court Rejects Retaliation Claim of Fired Breastfeeding Employee” for another example of how failing to prove causation can be fatal to a retaliation claim.
Isom’s FMLA Interference Claim
Of all Isom’s legal arguments, it was her FMLA interference claim that survived JDA’s request to dismiss. Why did the court decide not to dismiss it? In short, it was because it couldn’t decide whether Isom was provided the same or equivalent job when she returned from pregnancy leave.
The FMLA requires that any employee taking FMLA leave be “restored to an equivalent position with equivalent benefits, pay, status, and other terms and conditions of employment.” The question here was whether JDA gave Isom an equivalent position, but the court concluded there wasn’t enough evidence to answer this question and therefore a trial was necessary.
Summing It Up
- Getting through the “burden shifting” framework to prove pregnancy discrimination can be difficult for a plaintiff-employee who is the victim of discrimination.
- To prove retaliation, a causal connection must be established between the adverse employment action and the protected activity.
- It is not sufficient to give the same job title to someone returning from FMLA leave and conclude that constitutes an “equivalent position” under the FMLA.
- Due to the nature of certain jobs, such as those in sales, employers need to be careful in how they decide whether an equivalent position has been given to an employee returning from FMLA leave.
