Fifth Circuit Holds that FMLA Does Not Support Retaliation Claim Based on Association

Dallas, Texas (Justice News Flash) The Fifth Circuit Court of Appeals recently ruled that an employee may not sue his employer for retaliation in violation of the Family Medical Leave Act (“FMLA”) based upon his wife’s protected activity. Elsensohn v. St. Tammany Parish Sheriff’s Office, No. 07-30693, slip op. (5th Cir. June 6, 2008). Mr. and Mrs. Elsensohn worked together. Mrs. Elsensohn filed a FMLA claim and named her husband as a potential witness. The case settled and Mr. Elsensohn never testified. Although Mr. Elsensohn remained employed, he was denied several promotions. He sued, claiming retaliation under the FLMA.

The Court first found that, although an employer may not retaliate against an employee for providing testimony or potentially providing testimony regarding an FLMA claim, because Mr. Elsensohn never testified on his wife’s behalf and because the alleged retaliation occurred after her case settled (and thus at a time when Mr. Elsensohn could not be considered a potential witness), he had not engaged in protected activity.

The Court then examined whether the FMLA’s anti-retaliation provisions extend to spouses. In light of the FMLA’s plain meaning and the Court’s previous decision resolving derivative claims brought under a similar statute, the Court held that an employee may not pursue a retaliation claim based solely on his association with an employee who has engaged in protected activity.

If you would like to discuss a potential FMLA claim with an employment attorney, contact Keith Clouse a leading employment lawyer at Clouse Dunn Khoshbin LLP at [email protected]

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