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No evidence of retaliation against employee

Where a former case manager claimed her employer retaliated against her for taking leave under the Family and Medical Leave Act, or FMLA, her claims failed because the healthcare provider’s reasons for not selecting her for two positions was not pretext for retaliation and her voluntary resignation was not a constructive discharge.


Jeanne McCormack, who previously worked for Blue Ridge Behavioral Healthcare as a case manager for adults with severe mental illnesses, asserts claims under the FMLA and the Americans with Disabilities Act, or ADA. The case is presently before the court on Blue Ridge’s motion for summary judgment.

FMLA retaliation

McCormack argues that she suffered two types of adverse employment actions in retaliation for taking FMLA leave: “constructive discharge” and denial of “multiple promotions.”

In support of her constructive discharge claim, McCormack points to the following evidence in the record: (1) she lost flextime privileges and was told by her supervisor that the difference in treatment resulted from being on FMLA leave; (2) her caseload increased; (3) she was required to clock in and out of work from the office; (4) her performance evaluation for 2019 cited attendance concerns; (5) she received a disciplinary warning after leaving a conference early without permission; (6) she was denied the opportunity to attend a training session and (7) she was not selected for promotions. The evidence presented by McCormack does not meet the level of intolerability required to establish a constructive discharge claim.

McCormack also claims that she was denied promotions in retaliation for taking FMLA leave. McCormack’s deposition testimony indicates that she applied for the clinician positions within months of taking FMLA leave and that she was asked about her job attendance during an interview. The court finds this evidence sufficient to satisfy the “less onerous” burden of establishing causation at the prima facie stage.

The burden shifts to Blue Ridge to produce evidence of a legitimate, nondiscriminatory reason for not selecting McCormack for the clinician positions. Blue Ridge has met this burden by producing evidence that the posted clinician positions were withdrawn in response to regulatory changes and replaced with therapist positions for which different credentials were required.

The burden therefore shifts back to McCormack to show that the asserted justification for her nonselection was pretextual. Because she has failed to do so, Blue Ridge is entitled to summary judgment on the claim of retaliatory failure to promote.

FMLA interference

The court will assume that a reasonable jury could find that various comments regarding McCormack’s use of leave could have discouraged her from requesting additional leave under the FMLA. Nonetheless the court concludes that the interference claim fails for lack of prejudice.

First, the record reveals that Blue Ridge approved McCormack’s requests for FMLA leave, including the request for intermittent leave submitted four months before she resigned. Additionally, McCormack has not presented any evidence indicating that she lost compensation or suffered any other form of monetary loss as a result of the alleged interference with her FMLA rights.

Rather than requesting or taking additional leave under the FMLA, McCormack chose to resign from Blue Ridge. To the extent McCormack claims that she was forced to do so, she has not presented evidence from which a rational jury could find that her working conditions were so intolerable that a reasonable employee would have felt compelled to resign. Thus, Blue Ridge is entitled to summary judgment on this claim.

ADA discrimination

McCormack claims that Blue Ridge engaged in disability discrimination. Blue Ridge contends that McCormack is unable to prove that it took any adverse employment action against her because of her disability. In response, McCormack maintains that “she was denied multiple promotions and constructively discharged” in violation of the ADA. For many of the same reasons set forth above, the court concludes that Blue Ridge is entitled to summary judgment.

ADA retaliation

McCormack solely claims to have “engaged in protected activity” by “taking FMLA leave.” Notably absent, however, is any assertion that her requests for FMLA leave also qualified as requests for an ADA accommodation, much less any citation to authority supporting such assertion. And the court’s own review of existing caselaw supports the opposite conclusion.

Even if McCormack could be said to have engaged in an ADA-protected activity by requesting FMLA leave, there is insufficient evidence to survive summary judgment on a theory of constructive discharge or failure to promote, and McCormack does not identify any other adverse action for which she is entitled to relief under the ADA

Defendant’s motion for summary judgment granted.

McCormack v. Blue Ridge Behavioral Healthcare, Case No. 7:18-cv-00457, March 3, 2021. WDVA at Roanoke (Conrad). VLW 021-3-084. 25 pp.

VLW 021-3-084