Arkansas Firefighter Loses Substitution-Related FMLA Claim

A federal judge in Arkansas has ruled that a change to a fire department’s policy on substitutions did not violate the Family Medical Leave Act, nor constitute retaliation against a firefighter who prompted the change. Eric Andersen filed suit last February against the Springdale Fire Department and three chief officers.

Andersen used intermittent FMLA leave coupled with a large number of shift trades to accompany his step-son to St. Jude’s Hospital and on a Make-A-Wish trip. Thereafter, the department implemented a shift-trade policy that limited shift-trades to a maximum of 240 hours per member per year.

Andersen claims the new shift-trade policy was implemented as a form of retaliation for his having used FMLA leave. He also claims that as soon as the policy change was announced, he was ostracized by his coworkers who blamed him for the policy change. He claims the harassment he endured was so bad he was forced to resign. Andersen’s step-son died in August, 2017, of brain cancer.

The court rejected Anderson’s claims determining that the failure of members to be willing to substitute for him was not so objectionable that a reasonable person would have been compelled to resign. Quoting from the decision:

  • Andersen’s retaliation and discrimination claims are premised on two separate protected activities: the protected activity for his retaliation claim is his human resources complaint of FMLA discrimination, and the protected activity for his discrimination claim is his use of intermittent FMLA leave.
  • However, for both claims, Mr. Andersen’s alleged materially adverse action is his constructive discharge
  • Circumstances amounting to a constructive discharge constitute an adverse employment action.
  • The Defendants do not appear to dispute that Mr. Andersen has alleged that he engaged in protected activities under the FMLA, but they do contend that he has not alleged a plausible claim of constructive discharge.
  • To establish constructive discharge, a plaintiff must demonstrate that: (1) a reasonable person in his situation would find the working conditions intolerable, and (2) the employer intended to force him to quit.
  • Mere ostracism alone is not an adverse employment action, but behavior that “substantially and directly interferes with [a plaintiff]’s ability to do [his] job” may be.
  • “The intolerability of working conditions is judged by an objective standard, not the employee’s subjective feelings; the question is whether working conditions were rendered so objectionable that a reasonable person would have deemed resignation the only plausible alternative.”
  • The intent requirement may be satisfied if the plaintiffs resignation “was a reasonably foreseeable consequence of the employer’s actions.”
  • Andersen alleges that when he was implicitly singled out in a department-wide letter as the reason for the policy change regarding shift-swaps, this caused him to be “ostracized by his co-workers to the point that friendships were lost and trust was compromised,” and that after the announcement of the policy change, he was “treated with such contempt that his continued employment was intolerable and he was forced to find work elsewhere.”
  • As already noted, he also alleges that this occurred while the Defendants knew he was dealing with his child’s terminal illness and eventual death.
  • It seems plausible to the Court that some level of ostracism and contempt by Mr. Andersen’s coworkers would have been a reasonably foreseeable consequence of singling him out as the reason for an unpopular policy change.
  • So the critical issues to the Court’s mind, then, are: (1) what, concretely, the alleged ostracism and contempt by Mr. Andersen’s coworkers consisted of, at least generally speaking; and (2) whether that ostracism and contempt substantially and directly interfered with Mr. Andersen’s ability to do his job. And this is where Mr. Andersen’s pleadings run into trouble.
  • During the hearing on these motions, counsel for Mr. Andersen argued that the loss of trust and comradery between Mr. Andersen and his coworkers presented a safety problem because firemen need to rely on each other when doing the dangerous work of fighting fires.
  • But counsel never identified any specific examples of danger to Mr. Andersen or anyone else that was caused by the ostracism and contempt he suffered from his coworkers.
  • More importantly, Mr. Andersen’s written pleadings do not contain any discussion at all of safety issues.
  • The only concrete example of ostracism and contempt in Mr. Andersen’s pleadings is that he had “difficulty obtaining a shift-swap within his rank because of the letter” blaming him for the change in the shift-swap policy.
  • But Mr. Andersen does not allege that his difficulty obtaining shiftswaps interfered with his ability to do his job, nor does he provide allegations from which this Court could infer that it did so.
  • Andersen’s … does not allege facts showing that he plausibly suffered the sort of materially adverse action required by the FMLA.
  • But since the Court cannot conclude that it is impossible for Mr. Andersen to supplement his allegations with additional facts that would change this analysis, his Complaint will be dismissed without prejudice, so that he will have the opportunity to so supplement it if he wishes and is able to do so.

Here is a copy of the decision: Andersen v Springdale DECISION

More on the story.

Here is an earlier post on the suit.

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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