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Win one part of a case, lose on retaliation

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in Employment Law,Human Resources

In a complex case, don’t assume that because one part of the claim is clearly meritless, the whole case will go away.

Recent case: Thomas worked for Pace Industries and was approved to take intermittent FMLA leave due to a back condition. He was incorrectly assessed points for absences that were FMLA-related. But he was terminated after arguing about wearing his hat in the office, and he sued.

Thomas’s employer argued that he had no FMLA claim because, even assuming the company counted the points against him, there were no consequences associated with that count.

The court agreed. There was no evidence that Pace disciplined him, docked his pay, suspended him or otherwise took adverse action against him due to points assessed on days he took off for legitimate FMLA reasons. This, the court agreed, proved fatal. It was a case of no harm, no foul.

But Pace didn’t fare nearly as well on Thomas’s second argument: that he had been fired in retaliation.

Pace had argued it fired Thomas for insubordination when he got into an argument with a supervisor over removing his hat in the office. Thomas argued that he had no disciplinary history, had a recent good review and was never offered an opportunity to go through progressive discipline even though the company had such a program and he was a first-time offender.

That was enough for the court to say his retaliation claim could go forward. (Norring v. Pace Industries, No. 15-3715, DC MN 2016)

Final note: To complicate things further, during discovery the employer allegedly learned that Thomas had tampered with the computer system. It argued it would have fired him for that alone. But at best, that claim will cut damages against Pace if he wins the retaliation claim.

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