Employees who takemay have a retaliation case if their employers discipline them differently than other employees and can’t explain why. That’s why you must be able to explain every discipline decision and differentiate between seemingly similar conduct.
Recent case: John Johnson worked for Volvo Parts North America for several years, driving a forklift. He liked to work the third shift so his wife could attend school during the day when he was home.
Johnson was diagnosed with depression and anxiety and approved for intermittent FMLA leave, which he regularly took. Then he was fired because a supervisor saw him eating in a restaurant on a day when he was on . The supervisor concluded that if he felt well enough to eat out, he ought to have been able to work.
But following a union grievance, Johnson was reinstated. That’s when Johnson said he began to be treated differently than other employees.
For example, when a co-worker falsely claimed that Johnson had tried to run her over with a forklift, she was not punished for lying. However, Johnson was fired after he filed a police complaint because another co-worker almost hit him with a forklift. When police declined to file formal charges, Volvo reasoned that Johnson must have lied about the incident.
Johnson sued, alleging retaliation for takingleave.
The court said his case could go forward. Because Johnson was disciplined for an alleged false statement and the woman who falsely accused him was not; and because the only apparent difference was that Johnson had taken FMLA leave, a jury might conclude that Volvo punished Johnson solely for exercising his. (Johnson v. Volvo Parts North America, No. 2:09-CV-0917, SD OH, 2011)