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FMLA suit of worker fired after returning from leave reinstated

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FMLA suit of worker fired after returning from leave reinstated

A federal appeals court has reinstated a Family and Medical Leave Act lawsuit filed by a worker who was fired nine days after returning from FMLA leave, allegedly in part for being about five minutes late for work for a few days.

Jeanne Lee Wallner worked as an options trader for 29 years for Louisville, Kentucky-based financial brokerage firm J.J.B. Hilliard, W.L. Lyons L.L.C., which conducts business as Hilliard Lyons Asset Management, according to Friday's ruling by the 6th U.S. Circuit Court of Appeals in Cincinnati in Jeanne Lee Wallner v. J.J.B. Hilliard, W.L. Lyons L.O.C. dba Hilliard Lyons Asset Management.

In June 2009, Ms. Wallner requested FMLA leave to have knee-replacement surgery. Her physician estimated she would be unable to return to work before Oct. 11, 2009, according to the ruling.

Ms. Wallner's short-term disability insurer, however, calculated her return-to-work date as Sept. 22, 2009. In mid-September, a human resources manager at the firm told Ms. Wallner she was expected to return to work on that date, and Ms. Wallner unsuccessfully tried to explain to her the difference between FMLA leave and short-term disability, according to the ruling.

When Ms. Wallner returned to work on Oct. 1, a colleague started keeping track of when she showed up at work and said she had arrived for work about five minutes late for five days. She was terminated nine days after her return, allegedly in part because of her lateness.

Ms. Wallner filed suit against Hilliard Lyons in U.S. District Court in Louisville, Kentucky, charging interference and retaliation under the FMLA; the court granted the firm's motion for summary judgment dismissing the case.

But in a 2-1 ruling, a 6th Circuit panel reinstated the FMLA retaliation charge. “Even though Wallner lacks direct evidence of discrimination, she has presented circumstantial evidence of retaliation sufficient to forestall summary judgment on her claim,” said the ruling.

The opinion said “on the evidence presented by Wallner, a reasonable jury could find the decision to terminate Wallner did not depend upon her tardiness alone,” and that it would be reasonable for a jury to infer her leave “generated ill-will toward her” from her direct supervisor and factored into his decision to terminate her, said the court, in remanding the case to the District Court.

The panel did agree with the lower court's dismissal of the FMLA interference claim, stating Ms. Wallner has not demonstrated she was denied a statutory benefit to which she was entitled.

In July, a federal court in Seattle refused to dismiss an FMLA violation claim by a Boeing Co. employee who was terminated after she attempted to take FMLA leave for her migraines, stating there is evidence the company discriminated against her.

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