Successor employer’s delay in reinstating butcher might be FMLA interference, but no retaliation found

A grocery store butcher whose store was bought by another company while he was on FMLA leave can advance his claims that his FMLA rights were interfered with when he was asked to attend an orientation session and then faced a month-and-a half-delay in returning to work. He also made similar claims under New Jersey state law. After deeming the new purchaser a successor-in-interest under the FMLA, a federal district court in New Jersey denied in par its motion for summary judgment against the butcher’s interference claims, but granted it in full against the butcher’s retaliation claims for lack of an adverse employment action.

Butcher struggles to return from FMLA leave. A butcher at a grocery store took FMLA leave for surgery for a chronic ear condition. While he was on leave, his store went bankrupt and was bought by another company. The new store manager then directed the butcher to attend an orientation meeting on-site, which he did, and he kept in touch with the administration at the store to ensure he could return to work. However, when the butcher’s recovery was over and he attempted to return, he found that he “was not in the system.” It was not until a month and a half later that the butcher was asked to come in to work.

Purchaser a successor-in-interest under FMLA. The first question the court dealt with was whether the company that purchased the butcher’s store was a “successor in interest” under the FMLA. Disregarding the purchasing company’s arguments that its predecessor’s bankruptcy court ruling controlled the issue, the court looked at the question “through the employee’s viewpoint.” The new company “substantially continued the same business operations” as the prior one: It was in the same location, had most of the same butchers and management, and continued to be operated as a grocery store. The only changes had been to the store’s signage and cash registers, and to remove the store-brand products from the shelves. This made the purchasing company a successor-in-interest under the FMLA.

Attendance at orientation not interference. As for the butcher’s claim that his FMLA rights were interfered with when the employer required his attendance at a butcher orientation while he was on FMLA leave, the court found no interference. Pointing to the lack of clarity as to whether the orientation was mandatory or voluntary, as well as the fact that the butcher was not asked to perform work or refrain from seeking medical leave, the court determined that the meeting was a “de minimis breach of FMLA leave” and dismissed the butcher’s claim that it interfered with his FMLA rights.

Delay in reinstatement could be interference. The butcher also claimed that the month and a half delay between the end of his FMLA leave and his eventual reinstatement also was FMLA interference and sought back pay for his time out of work. While the company claimed that the upheaval from the store’s transition was to blame for the delay—something unrelated to the butcher’s FMLA leave—the court decided that this interference claim could proceed.

Delayed reinstatement not an adverse action. However, the court did grant summary judgment against the butcher’s FMLA claims for retaliation due to lack of an adverse employment action. While the court noted that the Third Circuit had not adopted the standard used by the Supreme Court in Title VII retaliation actions, even under that lower standard, an adverse employment action required a change in employment status, or at least a significant change in benefits. The butcher, though, had only claimed a delay of around a month and a half between the end of his FMLA leave and reinstatement to his prior position. While this “was less than efficient,” the court determined that it was not enough to amount to an adverse employment action because he was brought back to work on the same terms as before.

Lack of adverse action dooms state claims, too. The butcher’s employment retaliation claims under state law also required him to prove that he had suffered an adverse employment action. Therefore, the court granted summary judgment against these claims as well.

SOURCE: Podurgiel v. Acme Markets, Inc., (D.N.J.), No. 3:16-cv-02262, May 21, 2018.
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