In Yashenko v. Harrah's NC Casino Co., No. 05-1256 (4th Cir., Apr. 27, 2006) (PDF), the Fourth Circuit held, in an issue of first impression, that where an employee would have been discharged even if he had not taken a leave of absence under the FMLA, he is not entitled to be restored to his previous job at the conclusion of the leave.
Edward Yashenko was an employee relations manager whose position was eliminated following a company reorganization at Harrah's North Carolina Casino Company. In 2003, Yashenko was on FMLA leave for eleven weeks. While he was out, Harrah’s informed him that the company was reorganizing in a way that eliminated his position along with another management position. The Human Resources director at Harrah’s invited Yashenko to apply for some new positions that were being created as well as other existing positions. Yashenko decided not to apply for any position because, he explained, he was taking medication, and did not feel up to it, and because his doctors assertedly recommended that he not do so. Upon his return from FMLA leave, Harrah’s discharged him.
Yashenko filed suit alleging violations of the FMLA because Harrah’s did not restore him to his job at the end of his leave. He argued that the plain language of § 2614(a)(1) of the FMLA mandated restoration. That section states that any person who takes FMLA leave "shall be entitled, on return from such leave — (A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or (B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment." Both parties moved for summary judgment, and the district court granted summary judgment to Harrah’s.
In affirming the district court's grant of summary judgment, the Fourth Circuit held that the FMLA does not provide a covered employee with an absolute right to be restored to his previous job after taking approved leave. "[A]n employer may deny restoration when it can show that it would have discharged the employee in any event regardless of the leave." The court noted that "the Secretary of Labor has promulgated a regulation — 29 C.F.R. § 825.216 (2005) — clearly resolving the question."
The Court left unresolved the question of whether, in a case where the employee alleges interference with his right to restoration, the explicit language in § 825.216(a) validly shifts the ultimate burden of proof to the employer to establish the limitations on its obligation to restore the employee. "[W]e need not resolve that issue here because, regardless of who bears the ultimate burden of proof, Yashenko’s claim cannot succeed." In support of his argument that Harrah’s interfered with his FMLA rights, Yashenko offered only the following: (1) that Yashenko’s job was not in jeopardy when his leave commenced in May 2003; (2) that Yashenko received a grade increase in March 2003 shortly before the leave began; (3) that Yashenko was the only employee who lost his job after his position was eliminated by the reorganization in 2003; (4) that Harrah’s had never required anyone else on a leave of absence to apply or interview for a position; and (5) that even if Yashenko had applied for the newly created Manager position, he would not have gotten the job.
"None of this evidence puts into dispute the company’s contention that Yashenko’s position was eliminated in a legitimate reorganization," the court concluded.