It’s clearly illegal for your employer to retaliate against you for taking time off from work under the federal Family & Medical Leave Act. But a recent decision by a federal court in Massachusetts shows how difficult it is to prove it.


The FMLA, which was passed by Congress in 1993, generally requires employers to grant employees time off for certain family and medical reasons, such as caring for a sick relative or recovering from injury. The time off doesn’t have to be paid, but the employer can’t retaliate against the employee for taking the time off, and the employee must be allowed to return to the same position at the same pay rate after his leave ends.

In Gourdeau v. City of Newton, female police officer Jo Anne Gourdeau was passed over for a newly created traffic officer specialist position, which was given to a less-experienced male officer in the police department. Gourdeau, a veteran police officer with strong performance reviews, filed suit, claiming both gender discrimination and retaliation under the FMLA. After her gender discrimination claims were dismissed by a judge, her claim under the FMLA went to trial. At trial, the jury found in favor of the police department.

Over a period of several years prior to being passed over for the traffic officer position, Gourdeau had taken several days off under the FMLA to care for her sick mother and an injured child, and during and after two pregnancies. In support of her FMLA retaliation claim, Gourdeau said she had been told that the amount of sick leave taken by the candidates was a factor in the promotion decision.

During the trial, the parties debated Gourdeau’s burden of proof in arguing her FMLA retaliation claim. Did she merely have to show that the city used her FMLA leave as one of many reasons to deny her a promotion? Or, did she have the higher burden of proving that “but for” her leave, she would have gotten the promotion?

After the trial, the district court judge affirmed that Gourdeau had the higher burden of showing that, had she not taken FMLA leave, she would have gotten the promotion.

That ruling and others like it significantly weaken protections for workers under the FMLA. If you believe you have been retaliated against for taking your federally protected FMLA leave or suspect other employment law violations, don’t go it alone. Please contact the Employment Litigation attorneys at Sommers Schwartz to review your case.

Tad T. Roumayah

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Tad T. Roumayah

Tad Roumayah focuses his practice primarily on employment litigation, representing employees who have encountered discrimination, retaliation, wrongful discharge, whistleblower protection claims, wage and hour violations and other employment issues and disputes.