The Family Medical Leave Act (FMLA) prohibits retaliation against an employee that takes FMLA leave. The elements of a retaliation claim under the FMLA are as follows: (1) that the employee engaged in activity protected by the FMLA; (2) the employer knew of the employee's exercise of her protected rights; (3) the employer therafter took an adverse employment action against the employee; and, (4) there was a causal connection between the protected activity and the adverse employment action. Arban v. West Publishing Corp., 345 F.3d 390, 404 (6th Cir. 2003).
The Sixth Circuit recently in Crawford v. JP Morgan Chase, No. 12-3698 (August 6, 2013), ruled that the standard for an "adverse employment action" under the FMLA was the same as that established for Title VII retaliation by the Supreme Court in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 67-68 (2006), which is as follows:
A plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.
The Sixth Circuit, in reversing a summary judgment granted by the district court, ruled that Crawford had presented a fact issue as to an adverse employment action based on the following: (1) the position she was placed in following her return from FMLA leave "included more clerical duties, did not require the same level of expertise, and she was required to report to a former peer." The court further asserted that "the change in job responsibilities support an inference of an adverse employment action."