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An agent who was accursed afterwards abiding from medical leave and abominably applying for a position she ahead captivated can go to balloon on her backfire affirmation beneath the Family and Medical Leave Act (FMLA), the 11th U.S. Circuit Cloister of Appeals ruled.

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The plaintiff, who was diagnosed with assorted sclerosis, formed for The Salvation Army as a chief accountant in Georgia. In 2010, the analysis secretary became ill and was clumsy to absolutely acquittal his duties. Therefore, The Salvation Army restructured the administration and answer the plaintiff to an analysis administrator position. When the analysis secretary died, a backup was hired, and the plaintiff’s new position was eliminated.

Around the aforementioned time, the plaintiff took accustomed leave beneath the FMLA. When she alternate to work, she was told that her position was eliminated, but she could administer “as a formality” for a afresh acquaint chief accountant position (her above position) and would be transferred. She was the alone being to administer for the chief accountant position by the deadline.

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While the plaintiff’s appliance was pending, the backup analysis secretary retired and was in about-face replaced. Afore retiring, the approachable analysis secretary e-mailed the admission analysis secretary and explained that they were “obligated” to appoint the plaintiff because “she never accustomed poor ratings, and she did the chief accountant job above-mentioned to the position she held.” Nevertheless, the plaintiff was interviewed for the chief accountant position and was asked a cardinal of questions accompanying to her health. She was not assassin for the position, and her appliance was terminated.

The plaintiff filed a accusation alleging that her employer retaliated adjoin her for demography FMLA leave. The newest analysis secretary, however, offered two affidavit for abnegation the plaintiff’s appliance for the chief accountant position: She performed ailing in the interview, and she had “recent achievement issues” as an analysis manager.

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[SHRM members-only toolkit: Managing Family and Medical Leave]

The aboriginal reason, the cloister declared, was alleged into catechism because the analysis secretary adumbrated afore the account that she did not appetite to appoint the plaintiff. She wrote in an e-mail, “It appears we accept corrective ourselves into a corner” because the plaintiff was the alone one to administer by the appliance deadline. She additionally bidding affair about the plaintiff’s bloom afore the interview, acquainted in addition e-mail her “assumption that if this applicant is applying, again she is able-bodied abundant to biking at atomic 75 percent of the time.”

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Moreover, during the interview, the analysis secretary allegedly asked the plaintiff again about her bloom and its appulse on her adeptness to accommodated the demands of the job. The cloister said that these facts could abutment a award that the analysis secretary was anxious about the plaintiff’s charge for FMLA leave, not her account performance.

The cloister additionally begin affirmation abrasive the analysis secretary’s affair about the plaintiff’s accomplished achievement issues. The cloister acclaimed that the analysis secretary had no acquaintance authoritative the plaintiff. Furthermore, addition administrator testified that the plaintiff’s achievement evaluations “historically were excellent,” and although she absent three deadlines in 2012, those issues had not anxious him abundant to accord her a exact warning.

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Finally, the cloister accent the analysis secretary’s post-interview e-mail advertence that she was absorbed to acclaim adjoin hiring the plaintiff but “needed to anticipate through the rationale.” The cloister assured that the account could be interpreted to beggarly that she absitively not to appoint the plaintiff because of her affliction but accustomed the charge to appear up with an another justification.

Batson v. The Salvation Army, 11th Cir., No. 16-11788 (July 31, 2018).

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Professional Pointer: Interviewers should not acknowledgment an applicant’s medical history in the interview, nor should interviewers accomplish comments about applicants to anyone alfresco of the alternative process.

Roger Achille is an advocate and a assistant at Johnson & Wales University in Providence, R.I.

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