By Michael J. Soltis |  Jackson Lewis PC | November 30, 2013


Allegations concerning an employer’s pre-FMLA leave comments were sufficient to plead an FMLA “discouraging” claim, according to a federal district court in New York. Bailey Stoler et al v. Institute For Integrative Nutrition and Joshua Rosenthal (S.D.N.Y. November 18, 2013). In this putative class action complaint, the plaintiffs alleged that defendants consider female employees’ potential to have children when making employment decisions.

The FMLA regulations prohibit an employer from discouraging an employee from taking FMLA leave. Doing so, according to the regs, is a form of FMLA interference. Few decisions discuss this “discouraging” theory.

In denying the motion to dismiss concerning discouragement, the court pointed to comments to one plaintiff prior to her leave “that she should consider her priorities in planning her leave and return to work” and that “her position might change when she returned.” The plaintiff also alleged that the employer told her while she was on leave that her position might change. “Taken in totality, it is plausible that such comments were designed to coerce [the employee] to leave her employment or to discourage [the employee] from using her leave,” according to the court.

The court also held that a request for “maternity leave” is a sufficient request for FMLA leave. The court also rejected the argument that the employee did not have the FMLA right to be restored to her former position because she extended her leave—with her employer’s permission—an additional two weeks beyond the 12 weeks of FMLA leave.

Among the plaintiffs’ allegations are that defendants created a “Maternity Projection” chart”, which “used each employee’s age, marital status, and maternal status to determine how soon the employee was likely to have a child.”