In a recent opinion, a federal court held that an employee discharged from a retailer soon after returning from medical leave stated a claim for intentional infliction of emotional distress, a difficult claim to prove.  Brown v. Casey’s Retail Co., 35 IER Cases (BNA) 1129 (S.D. Ill. May 13, 2013).

The plaintiff, Regenia Brown, alleged that after she returned from leave under the Family and Medical Leave Act (FMLA) for a serious medical condition requiring a hysterectomy, she was harassed and fired in retaliation for exercising her leave rights.  Brown alleged in her complaint that even though the store manager knew she suffered from a serious medical condition, the manager had complained to her before she left about the burdens her leave would create on other staff.  Brown alleged that, when she returned from leave, her manager brought her to tears with her negativity and harassing language, knowing she was in a weakened state.  She claimed that she was then fired in retaliation for having taken leave, and suffered profound emotional distress, requiring medical attention and medication with damages exceeding $100,000.

The court denied the retailer’s motion to dismiss, holding that Brown alleged facts that, if believed, would establish that her employer engaged in truly extreme an outrageous conduct. The court noted that, although the tort does not reach mere insults, indignities, threats, annoyances, petty oppressions or other trivialities in the workplace, one factor that influences the extreme and outrageous nature of the conduct is the degree of power or authority that the actor has over the plaintiff. The court focused on Brown’s allegations that the store manager knew Brown was in a weakened mental and physical condition yet used her power as manager to abuse Brown.  Because the manager allegedly knew that Brown was particularly susceptible, the manager’s alleged behavior was more extreme and outrageous than might otherwise be considered merely rude, abrasive or inconsiderate. 

The decision highlights how important it is for managers to be very careful how they communicate with employees who are taking FMLA leave.  Companies that have a Human Resources manager or department should instruct managers to direct all inquiries to Human Resources.  Further, managers need to be careful to treat employees no differently when they return from FMLA leave to avoid a claim of retaliation.  Certainly, the decision to terminate an employee’s employment shortly after a return from FMLA leave should be reviewed carefully to ensure it is justifiable and the justifications are well documented.