Employment – FMLA retaliation claim survives motion to dismiss

Where an employee alleged that she was demoted in retaliation for taking leave under the Family and Medical Leave Act, and she specifically identified alleged differences between her pre-FMLA-leave and post-FMLA-leave positions sufficient to support an inference that they would be seen as significantly materially adverse by a reasonable employee, the employer’s motion to dismiss this claim was denied.

Background

Amelia Merchant filed this civil action under the Family and Medical Leave Act, or FMLA, alleging that the City of Roanoke unlawfully interfered with and retaliated against her for taking medical leave. Defendant has filed a motion to dismiss. During briefing, Merchant conceded that she will not be pursuing an interference claim. Count One is thus dismissed.

Demotion

In Count Two (retaliatory demotion), Merchant alleges that she was demoted as retaliation for using her FMLA leave. More specifically, she alleges that because she properly notified the City of her need for FMLA-qualifying leave, the City discriminated and retaliated against her by demoting her employment, and that the City would not have demoted her but for her requests related to FMLA leave.
The City argues that Merchant’s complaint fails to sufficiently allege that her new Project Consultant-ARPA Role was materially adverse or worse than her prior position as Deputy Director. The court disagrees. Merchant’s list of alleged differences between her pre-FMLA-leave and post-FMLA-leave positions sufficient to support an inference that they would be seen as significantly materially adverse by a reasonable employee.
The City also claims that Merchant fails to allege that any adverse action was causally connected to her FMLA leave. The court again disagrees. Merchant alleges that she went on FMLA leave beginning March 6, 2024, and her job was restructured on or about April 16, 2024, and April 29, 2024. She alleges that two months after her return to work on June 1, 2024, she was permanently transitioned out of her role and into one she alleges was materially worse. These changes are sufficient at the pleading stage to state a claim of causality.

Constructive discharge

To establish constructive discharge, an employee must meet a high standard. The employee must show both that her working conditions became so intolerable that a reasonable person in the employee’s position would have felt compelled to resign, and she must actually resign.
As alleged in the complaint, Merchant’s theory of constructive discharge hinges on her theory of demotion. While demotion can constitute a constructive discharge, especially where the demotion is essentially a career-ending action, mere dissatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to resign.

The City notes that because Merchant was working from home, she generally cannot prevail on a claim that her work environment is so objectively intolerable that she has no choice but to resign. The City also argues that the fact that Merchant opted to continue working for the City for four months after her announcement of retirement indicates that her conditions were not intolerable to a reasonable person.

The court agrees. Constructive discharge comes with a high pleading standard. As pled, the facts in Merchant’s complaint do not support a reasonable inference that her working conditions were so intolerable as to compel a reasonable person to resign. Count Two is dismissed.
Defendant’s motion to dismiss granted in part, denied in part.

Merchant v. City of Roanoke, Case No. 7:25-cv-00735, June 4, 2026. WDVA at Roanoke (Urbanski). VLW 026-3-242. 16 pp.

Full-Text Opinion
VLW 026-3-242