Under the FMLA, any eligible employee who takes FMLA leave shall be entitled – on return from such leave -to be restored by the employer to the position of employment held by the employee when the leave commenced, or to be restored to an equivalent position. 29 U.S.C. § 2614(a)(1). This right is qualified however by 29 U.S.C. § 2614(a)(3)(B), which essentially provides than an employee returning from FMLA leave is not entitled to restoration unless he would have continued to be employed if he had not taken FMLA leave. A recently decided case from the 6th Circuit Court of Appeals addresses the interplay between these statutory provisions.

In Cutcher v. Kmart Corp., 2010 WL 346131 (6th Cir. Feb. 1, 2010), the plaintiff returned from FMLA to learn that her employment had been terminated allegedly because of a reduction in force. Cutcher v. Kmart Corp. Invoking 29 U.S.C. § 2614(a)(3)(B), the defendant argued that the plaintiff would have been terminated even had she not taken FMLA leave. The plaintiff, however, challenged her termination arguing that the defendant negatively considered her use of FMLA when it made the decision to terminate her employment and that the defendant retaliated against her by she used FMLA leave.

The 6th Circuit reviewed the evidence presented by the plaintiff, which included the defendant’s consideration of the plaintiff’s use of leave on her appraisal score, and determined that a reasonable jury could conclude that the plaintiff’s termination was based in part on the plaintiff’s use of FMLA protected leave. Notably, the 6th Circuit held that the proof amassed by the plaintiff established a jury issue on plaintiff’s FMLA interference claim under 29 U.S.C. § 2615(a)(1) and plaintiff’s FMLA retaliation claim under 29 U.S.C. § 2615(a)(2).