Cobb County Fire Facing Gender, Pregnancy and FMLA Suit

A Cobb County firefighter has filed suit against her department alleging sexual harassment, sex discrimination, pregnancy discrimination and FMLA violations.

Firefighter Alison Carroll has worked for Cobb County Fire and Emergency Services since 2008. She claims she was constructively discharged on July 7, 2013 because the department refused her request for leave under the Family Medical Leave Act (FMLA).

Carroll's 29 page, 80 paragraph, eight count complaint was filed last week in US District Court in Atlanta. It alleges that her problems began in August 2012 when she informed her supervisor that she was pregnant.

Starting in September, 2012 a ranking officer, Roger Priest, allegedly began pressuring Carroll’s officer to have her provide a date that she would be “leaving”. The complaint states: “These repeated requests, which appeared to be rooted in unfounded sex-based stereotypes, continued with regularity until around the end of September. In light of the repeated inquiries, these comments were impermissible harassment based on sex and pregnancy and created a hostile work environment.”

Carroll then complained to Priest and others about “the unlawful sex and pregnancy based harassment and discrimination she was experiencing. … Shortly thereafter, Roger Priest unusually denied an annual leave request of Ms. Carroll that had been previously approved. The denial was an adverse action.”

The complaint continued:  “Priest also told many of Ms. Carroll’s co-workers to not help Ms. Carroll with her work or accommodate her, requiring them to treat her differently. Through these orders, through increased scrutiny of Ms. Carroll continuing until she left on leave, through subjecting Ms. Carroll to different terms and conditions of employment, and through harassing comments and a hostile work environment continuing until she left on leave, Priest also subjected Ms. Carroll to disparate treatment and harassment on the basis of sex and/or pregnancy.”

“On or around Tuesday, November 27, 2012, Mr. Priest told Ms. Carroll ‘if you were a man, I would have told you a long time ago that you can’t do your job.’ He also made numerous other gender-based derogatory comments to Ms. Carroll on other occasions.” That same day, she then filed a complaint with county Human Resources.

Two weeks later, “In the middle of December 2012, Ms. Carroll’s employer forcibly placed her on mandatory medical leave because of her sex and pregnancy, and in retaliation for her protected activity.”

Carroll objected to the treatment she was receiving, but acquiesed to the forced medical leave because she claims she had no choice. She gave birth In April, 2013.

According to the complaint, the county failed to designate Carroll’s leave as FMLA leave in December… a pretty serious mistake if indeed they did fail to designate it.

In May, Carroll requested additional leave to accommodate child care.  “On June 11, 2013… in response to Ms. Carroll’s request in May 2013 to use leave for the birth of her child, Cobb County told Ms. Carroll she had been granted FMLA leave for the first twelve weeks after December 14, 2012… Ms. Carroll …[was]  directed [to] report to a new location after returning for leave on July 7, 2013: 'Station 9.' Because Cobb County had failed to timely designate Ms. Carroll’s prior leave as FMLA qualifying and of the concomitant prejudice to Ms. Carroll’s ability to proceed while on leave, she was entitled to additional time to care for her child, so the denial was wrongful.”

Here is a copy of the complaint: Complaint

By the way – the law is: it is the employer’s responsibility to designate leave as FMLA leave. An employee may request leave to be designated as FMLA, but it is the employer’s responsibility to officially designate it. Employers who don’t know the law or who fail to officially designate leave as FMLA, may find that employees who have been off on extended absences, when forced to return to work, know enough to request FMLA leave. In such a case the employer may discover that it has to grant the employee an addition 12 weeks of FMLA leave even though the employee has been off for an extended period on non-FMLA designated leave.

29 CFR 825.301 – Designation of FMLA leave.

(d) Retroactive designation. If an employer does not designate leave as required by § 825.300, the employer may retroactively designate leave as FMLA leave with appropriate notice to the employee as required by § 825.300 provided that the employer's failure to timely designate leave does not cause harm or injury to the employee.

(e) Remedies. If an employer's failure to timely designate leave in accordance with § 825.300 causes the employee to suffer harm, it may constitute an interference with, restraint of, or denial of the exercise of an employee's FMLA rights. An employer may be liable for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered (see § 825.400(c) ). For example, if an employer that was put on notice that an employee needed FMLA leave failed to designate the leave properly, but the employee's own serious health condition prevented him or her from returning to work during that time period regardless of the designation, an employee may not be able to show that the employee suffered harm as a result of the employer's actions. However, if an employee took leave to provide care for a son or daughter with a serious health condition believing it would not count toward his or her FMLA entitlement, and the employee planned to later use that FMLA leave to provide care for a spouse who would need assistance when recovering from surgery planned for a later date, the employee may be able to show that harm has occurred as a result of the employer's failure to designate properly. The employee might establish this by showing that he or she would have arranged for an alternative caregiver for the seriously-ill son or daughter if the leave had been designated timely.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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