The saga of former Attorney General Kathleen Kane continued in the courts on January 4, 2017 when Judge Sylvia Rambo (Middle District of Pennsylvania) dismissed an FMLA claim brought against her by a former investigator. In his Complaint, the investigator claimed that Kane retaliated against him for taking FMLA leave by placing him on paid administrative leave.  His leave began in June 2015; as of June 2016, he was still on paid administrative leave, with no reason for the leave and no expiration date. The Court held that being on the paid leave was an adverse employment action under the FMLA because he was deprived of the ability to go to work and advance his career. Judge Rambo even compared the investigator’s situation to Milton Waddams from the 1999 cult classic Office Space when she noted that Milton’s workspace was moved to “the basement and [he] was deprived of his favorite stapler – and no one disputes the adversity of his ultimately untenable work environment.”  

Ultimately, however, the investigator’s FMLA claim could not prevail because he did not attempt to return to work until five weeks after his FMLA leave expired; therefore, he had no right to reinstatement. Even though the investigator had received an extension of his leave beyond the twelve-week FMLA period, Judge Rambo noted that the Court interpret the twelve-week period strictly, and held that he was no longer entitled to the protections of the FMLA as a matter of law after the end of his twelve-week period, despite the employer granting the extension of leave.  

This case is interesting because, although it holds that an employee is no longer covered by the FMLA’s anti-retaliation provision if the employee does not return after twelve weeks of leave, it does not address or change the law with regard the ADA protection that exists after FMLA leave is exhausted. Employers should keep in mind that the ADA can kick in at the end of FMLA leave if an employee needs additional time off for a medical reason.

Judge Rambo’s opinion in Wevodau v. Commonwealth of Pennsylvania is available here.