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FMLA and ADA Claims Dismissed Where Employer Continued Misconduct Investigation During Employee’s Three Leaves

The situation is not that uncommon. An employer learns of a performance incident and the employee involved promptly requests FMLA leave. The employer then must decide how to address the incident while avoiding the risk of an FMLA or ADA claim. Will the law protect an employer that provides the employee FMLA leave while investigating the misconduct allegations against that employee?

Such employer efforts were upheld in the Fourth Circuit’s decision dismissing FMLA and ADA claims in Adams v. Anne Arundel County Public Schools (4th Cir. June 15, 2015). The plaintiff, Andrew Adams, an assistant principal, was accused of physically accosting a student at his middle school. Child Protective Services investigated and cleared Adams. The School Board launched its own investigation and temporarily reassigned Adams to another school. While that investigation was ongoing, Adams was set to return to his original school but requested, and was granted, FMLA leave for stress, anxiety and high blood pressure related to the abuse allegations. When Adams returned to work a few weeks later, he alleged that the principal verbally berated him. Adams requested and was granted a second leave beginning that same day. Adams returned to work yet again and claimed the principal berated him again. Two weeks later, Adams began a third leave that exhausted his FMLA entitlement. During this third leave, the Board required Adams to meet three times with a psychologist of its choosing. That doctor and Adams’s doctor required that Adams be assigned to a lower stress environment upon his return. Also during this leave, the Board met with Adams and his attorney regarding its investigation and issued a written reprimand to him.  The Board later notified Adams that he would be transferred to a smaller school with a lower stress environment. According to the applicable labor contract, there would be no reduction in Adams’ salary for at least two years despite his being at a smaller school.

Adams’s claimed that by the reprimands and transfer, his employer interfered with his FMLA rights, discriminated against him in violation of the ADA, and retaliated against him for exercising his rights under both the FMLA and ADA. The court rejected his claims, noting that the right to reinstatement after FMLA leave is not “absolute” but is limited to the position or equivalent that he would have retained absent taking leave. Additionally, the Court noted that Adams was not denied any leave and that  the FMLA expressly permits an employer to seek a second medical opinion related to how long an employee would be out and/or how to fashion an appropriate environment for the employee’s return to work. The court also noted that the Board’s investigation was intrinsically connected to its duty to ensure the safety of its students and that the Board accorded Adams due process at every step of its investigation.

The court dismissed the ADA claims based on similar analysis, holding that Adams’ transfer to a school where his pay ultimately may be reduced by less than 1% was not an adverse employment action. The court also noted that the Board acted appropriately by making timely efforts to effectuate the doctors’ recommendations to reasonably accommodate Adams by returning him to work in a lower stress environment. The court noted that “less stressful jobs may on occasion be less remunerative. That tradeoff does not invalidate the Board’saction [transferring Adams as a reasonable accommodation] in these circumstances.”

Notably, this decision centered on an investigation that started before any FMLA leave or notice of disability; and, while that investigation continued for several months, the employer followed its established investigation process and communicated with the employee throughout the process. This careful approach contributed to the Board’s successful defense.

Jackson Lewis P.C. © 2020National Law Review, Volume V, Number 190


About this Author

Alison Jacobs Wice, Workplace Law, Counsel, Training, Litigation, Jackson Lewis Law Firm

Alison Jacobs Wice is Principal in the Hartford, Connecticut, office of Jackson Lewis P.C. She represents management exclusively in workplace law and related advice, counsel, training and litigation.

Since joining Jackson Lewis in September 2003, and throughout her career, Ms. Wice has represented employers in state and federal trial, appellate and administrative proceedings throughout the United States involving the full spectrum of substantive issues covered by the firm's employment law practice. She provides advice and counsel to corporate clients on a...

Michael Soltis, Jackson Lewis Law Firm, Disability and Health Management Attorney
Office Managing Principal and Office Litigation Manager Stamford

Michael J. Soltis is Office Managing Principal and Litigation Manager of the Stamford, Connecticut, office of Jackson Lewis P.C. He has represented employers in a wide range of employment and labor matters for more than 30 years.

Mr. Soltis has advised on and litigated matters involving just about every type of employment claim, including discrimination claims, family and medical leave claims, public policy and whistleblower claims, contract claims, and common law employment claims. He has litigated cases in state court and federal district court and has argued numerous appeals at the Second Circuit Court of Appeals. In addition, he has extensive experience on all aspects of family and disability leave management, layoff planning and implementation, and workplace wellness initiatives.

Mr. Soltis has negotiated more than 100 collective bargaining agreements in a variety of industries. In addition, he has counseled numerous other employers, “away from the table,” through their collective bargaining. He has a particular expertise in incorporating “lean” concepts into collective bargaining agreements. Mr. Soltis regularly advises employers on labor contract interpretation and administration. He has represented employers at dozens of labor arbitrations. He has authored numerous articles on employment and labor law topics for national and state publications and is a frequent speaker on these topics to legal and business audiences.