For the purposes of a retaliation claim under the Family and Medical Leave Act (“FMLA”), an adverse employment action is “any action by the employer that is likely to dissuade a reasonable worker in the plaintiff’s position from exercising his legal rights.” Millea v. Metro-North R.R. Co., 658 F.3d 154, 164 (2d Cir. 2011).

In the Millea case, the plaintiff, an employee who took intermittent FMLA leave for panic attacks related to post traumatic stress disorder, alleged that his employer retaliated against him for taking FMLA leave by: 1) placing a notice of discipline in his employment file for a year; 2) requiring him to update his FMLA certification; 3) creating a work environment that motivated him to transfer to a lower paying job; 4) delaying approval of his bid for the lead custodian position; and 5) subjecting him to heightened managerial surveillance.

Even though the plaintiff did not suffer any termination, demotion, loss of benefits, or significantly diminished responsibilities, the court held that an adverse employment action within the context of an FMLA retaliation claim was not limited to a material change in the terms and condition of employment, but rather also encompassed any action “that is likely to dissuade a reasonable worker in the plaintiff’s position from exercising his legal rights.”

Under this broader definition of an adverse employment action, “it may be actionable to conduct a lengthy investigation that places a cloud over an employee’s career, to transfer an employee to a position outside her expertise, to suspend an employee without pay (even if the employer later provided backpay), or to place a reprimand in an employee’s personnel file for one year.” Purdie v. City Univ. of New York, 13 Civ. 6423, 2015 U.S. Dist. LEXIS 2458, 2015 WL 129552, at *7 (S.D.N.Y. Jan. 8, 2015) (internal quotation marks, citations, and brackets omitted).

If you believe that your employer retaliated against you for exercising your rights under the FMLA, it’s smart to immediately contact a New York City employment attorney to preserve your rights.

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