Issue: Can an employee who does not suffer economic harms still recover damages when he or she is fired after engaging in a protected activity?
The plaintiff, Anthony Lave, was a 53-year-old broadband technician who began working for Charter Communications in May 2008. Lave took one day off from work on Jan. 5, 2015, because of a pre-existing back condition. When he returned to work the following day, he was counseled by his employer about his attendance. He filed a retaliation complaint on Jan. 8, 2015, and subsequently took FMLA leave from Jan. 9, 2015, to Jan. 22, 2015. His supervisor subsequently suspended him from his job on Feb. 10, 2015, and fired him one week later. Lave found another comparable job within three months and did not receive treatment for emotional distress. He filed a civil complaint against Charter Communications, alleging that the company had violated his FMLA rights by retaliating against him for taking FMLA leave. He also alleged that the company retaliated against him for filing the retaliation complaint and for taking sick leave for a disability. The defendant alleged that Lave was fired for using inappropriate language at work in front of a customer and that his termination had nothing to do with his taking leave.
Rule: In order to recover in a claim for retaliation based on a protected activity, the plaintiff must show that he or she suffered harm as a result
In California, plaintiffs must show several things in order for them to prevail on unlawful retaliation claims. They must first show that the activity in which they engaged was protected. The plaintiffs must next show that the defendants then initiated adverse employment actions against the plaintiffs, including firings, demotions or others. Then, the plaintiffs must prove that the protected activities were the reason behind the adverse employment actions. Finally, they must prove that the adverse employment actions caused them harm.
In Lave’s case, his protected activity was requesting FMLA leave and then taking off time as a reasonable accommodation for his pre-existing back injury. Under the FMLA, workers who are employed by companies with 50 or more employees within a 75-mile radius are allowed to take up to 12 weeks of unpaid leave from work each year to care for their own serious medical conditions or those of their immediate family members. The workers must give notice to the employers upon learning that the leave will be necessary. The employers are then required to allow them to take reasonable leave and must allow them to return to their former jobs upon returning. When employers retaliate against workers for taking FMLA leave, it is illegal and in violation of the law.
Lave claimed that he suffered emotional distress, which constituted the harm he experienced as a result of the retaliatory discharge. He did not allege that he suffered any past or future income or medical expense losses. Before trial, he made a §998 demand to settle the case in the amount of $250,000. The defendant did not accept the demand or extend a counter offer.
After a trial that lasted 20 days, the jury deliberated for one and one-fourth days before returning a verdict in favor of the plaintiff. He was awarded a gross verdict of $575,000, with all of it allocated to his noneconomic damages from suffering emotional distress as a result of his termination. Since the plaintiff was also a prevailing party in an FEHA case, he was also allowed to file a motion in order to receive payment of his attorney’s fees from the defendant.
This case demonstrates that under both state and federal law, engaging in retaliation against a worker who takes reasonable FMLA leave is prohibited. It also demonstrates that plaintiffs who only suffer noneconomic losses as a result of the retaliation may prevail in their lawsuits even if they did not suffer any economic losses. People who have been terminated in retaliation for taking reasonable FMLA leave may want to consult with experienced employment law attorneys in Los Angeles. An attorney might evaluate a claim and offer an honest assessment of whether or not the claim has a valid legal basis for a lawsuit. The attorney may also work to make certain that the complaint is filed appropriately and within the statute of limitations in order to preserve his or her client’s potential rights to the recovery of damages.