Recent Development by Ramsey Bacon Prather
After Wendelle Elsensohn settled a Family and Medical Leave Act (FMLA) suit against her employer out of court, her husband, Lawrence Elsensohn, Jr., said he suffered on the job. According to Mr. Elsensohn, who worked alongside his wife at the St. Tammany Parish Sheriff's Office, his supervisors responded to his wife's FMLA claim by refusing to promote him and assigning him to undesirable work shifts. Claiming that this treatment undermined his superlative work record, Mr. Elsensohn filed his own FMLA suit in federal court contending that his supervisors' actions constituted unlawful retaliation under the Act.
Specifically, Mr. Elsensohn alleged that sheriff's department officials violated FMLA provisions that make it illegal for any person to retaliate against “an individual” who has, or is about to, provide information or testify in connection with an FMLA-related inquiry or proceeding. Although Mr. Elsensohn conceded that “[a]t all times, [he] attempted to not involve himself in his wife's FMLA claim except to give her moral support,” he claimed FMLA coverage by virtue of both the high probability that he would have been called to testify had his wife's claim proceeded without settling and his intent to do so. The sheriff's department officials argued that the claim fell outside the FMLA's scope because it derived not from Mr. Elsensohn's protected activity, but from his wife's. Further, the defendants contended that the FMLA did not cover Mr. Elsensohn because he did not testify, nor was he about to testify, in support of his wife's FMLA claim. Granting the officials' motion to dismiss, the United States District Court for the Eastern District of Louisiana concluded that Mr. Elsensohn's failure to allege any participation in his wife's FMLA suit before it settled precluded him from stating a claim under the Act. Affirming the district court's ruling, the United States Court of Appeals for the Fifth Circuit held that the FMLA afforded Mr. Elsensohn no protection because, according to the complaint, he provided no information, was never questioned, did not testify, and was not about to testify in a proceeding relating to his wife's FMLA claim when the alleged retaliation occurred. Elsensohn v. St. Tammany Parish Sheriff's Office, 530 F.3d 368, 373 (5th Cir. 2008).
About the Author
Ramsey Bacon Prather. J.D. candidate 2010, Tulane University School of Law; B.A. 2005, New York University.
Citation
83 Tul. L. Rev. 1537 (2009)