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Employee Told "Don't Die at the Desk" Brings FMLA and ADA Claims


If you just returned from work after having open heart surgery, you would not expect your supervisor to tell you, "don't die at the desk." This comment is insensitive, to say the least. But, believe it or not, this comment went a long way to supporting an employee's FMLA and ADA claims against his employer.

Baier v. Rohr-Mont Motors, Inc., d/b/a Oakbrook Toyota in Westmont

In this case, recently decided in Florida, a general sales manager at an auto dealership, was terminated after undergoing open heart surgery. Mr. Baier took FMLA leave for a month after his serious surgery, then returned to work wearing a visible defibrillator, while he continued rehabilitation. His physician restricted his work to short periods at a time and no more than 40 hours a week. However, his supervisor denied these restrictions, leaving Mr. Baier to run the store for hours at a time. The supervisor also repeatedly demanded to know when he would be "100 percent." When Mr. Baier complained about being required to work until midnight, his supervisor replied, "that's your job!"

As if those comments weren't harassing enough, an interim supervisor told Mr. Baier, "don't die at the desk or I am going to drag you outside and throw you in the ditch next to the road." Then, after being threatened with demotion, he was discharged on, what he claims was, a trumped up charge.

Inappropriate comments support employee's claims of FMLA interference and failure to accommodate

Days before firing Mr. Baier, his supervisor warns him, "don't die at the desk. This comment bolstered his FMLA and ADA claims, as it provided clear evidence of the discriminatory intent driving his termination. Mr. Baier's ADA claim was allowed to proceed to trial because of the evidence that his employer failed to provide him notice of his right to a reduced schedule, in the form of intermittent leave. Indeed, he was blatantly denied this accommodation. Additionally, Mr. Baier requested FMLA leave when he returned to work after his surgery, but he was not given notice of his FMLA rights. According to the FMLA, he was entitled to intermittent family leave, which would have allowed him to work the reduced schedule his doctor recommended. Instead, he was denied the reduced schedule he requested.

FMLA Retaliation was clearly evident

The court also found sufficient evidence in Mr. Baier's case that he was terminated because he exercised his right to take FMLA leave. In addition to being terminated only 13 days after he returned from FMLA leave, he also had evidence of his supervisor's comments regarding his health. The "don't die at the desk" comment was made only 4 days before he was terminated. Since these comments were made by the supervisor who was the sole decision maker regarding Mr. Baier's termination, the comments raise an inference that he was terminated because he exercised his FMLA rights. The comments and actions of the supervisor also supported Mr. Baier's disability claim.

If you feel you have been denied FMLA leave or an ADA accommodation, or if you have any other questions regarding your employment rights, please contact Michel | King , either online or by calling us at (205) 265-1880.

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