Labor & Employment Law Daily Wrap Up, EMPLOYEE LEAVE—S.D. Ohio: Recruiter plausibly alleged she was constructively discharged for requesting FMLA caretaker leave, (Apr 29, 2025)

By Marjorie Johnson, J.D.

By communicating that she needed time off to care for a sick immediate family member, it was plausible that she complied with the employer's policies to put it on notice of her intent to take FMLA leave.

A former travel nurse recruiter for a healthcare staffing company who claimed she was forced to resign, after she raised concerns about the mishandling patients’ personal identifying information (PII) and requested and was denied leave to care for her sick husband, plausibly alleged claims of FMLA interference and retaliation. However, a federal court granted the employer’s bid to dismiss her claim of wrongful discharge in violation of public policy, with leave to amend, since she failed to cite to a federal or state constitutional or statutory provision that embodied the protection of the allegedly confidential client information. Her ADA claim of associational discharge also failed to advance as unexhausted (Warner v. Health Carousel, LLC, No. 3:24-cv-00323 (S.D. Ohio Apr. 25, 2025)).

Concerns over handling of patients’ PII. The employee began working for the employer in March 2023. According to her complaint, she began voicing concerns in January 2024 that company policies were being violated and patients' PII was being mishandled. After reporting these concerns, she was allegedly left out of meetings, excluded from a trip all her coworkers attended, and had her questions and concerns ignored by management. In March, the VP of recruitment told her that the company thought “it was best that [she] began looking for employment elsewhere.”

FMLA request denied. She further claimed that while she continued working for the company, her husband's health worsened, and in April 2024 she sent an email regarding her need to take leave to care for him. Her request was denied, and on April 19, her supervisor allegedly told her that she needed to resign by May 17. She refused, and three days later her supervisor and the recruiting manager again requested that she resign. She again refused, and was met with increased hostility and harassment.

Forced to resign. Finally, on May 10, her supervisor and the recruiting manager allegedly told her that if she did not resign her PTO would be taken from her, and she would not be given her commissions she was owed. Feeling she had no other choice, she resigned that day.

Plausible request for FMLA leave. Denying the employer’s bid to dismiss her FMLA interference and retaliation claims, the court rejected the employer’s contention that she failed to plausibly allege that she gave notice of her intention to take leave under the FMLA. While she did not allege gave notice of the nature of her husband's health conditions, let alone that they were severe enough to entitle her to FMLA caretaker leave, at the pleading stage she only needed to provide “fair notice” and “plausibility.” She did that here by asserting that she requested, and was denied, time off to care for her husband on two separate occasions.

She did not need to use “magic words” to indicate her intent to take FMLA leave, but instead needed only assert that she provided the employer “with reasonably adequate information under the circumstances that the employee seeks leave under the FMLA,” explained the court. Here, it was plausible that by saying that she needed time off to care for a sick immediate family member, she complied with the employer's policies to put it on notice of her intent to take FMLA. And because it was also plausible that by allegedly telling her that she could not take time off, the employer denied an FMLA request, her FMLA interference claim could proceed.

Constructive discharge. The court also squarely rejected the employer’s contention that her FMLA retaliation claim failed since a constructive discharge cannot constitute an adverse employment action under the FMLA. The Sixth Circuit has not interpreted its caselaw as foreclosing constructive discharge under the FMLA, and the court declined to do so here. And as with her FMLA interference claim, she plausibly alleged that she specifically requested FMLA leave, which was undisputedly a protected activity.

Public policy. However, dismissal was warranted as to her claim that she was terminated in violation of public policy since the statutory provision she relied upon to support her claim did not cover her or her actions. Rather, it covered retail fast-food establishments, “which has nothing to do with handling confidential health information.” Moreover, she did not cite to any other federal or state constitutional or statutory provision that would embody the protection of such confidential client information, and thus failed to plausibly allege the “clarity element” of a discharge in violation of public policy claim. However, while the court dismissed her claim, it did so without prejudice and leave to amend to give her the opportunity to allege an applicable public policy that was supposedly violated by her termination.

Associational discrimination. Finally, the court dismissed her ADA claim of associational discrimination as unexhausted since she did not raise the claim in her EEOC charge. Though she pointed to her counsel's August 26, 2024, Notice of Claims letter to the employer, which stated that the impetus for the discriminatory conduct was her sending “an email regarding her need to take leave because of her husband's serious medical condition,” there was no mention of an intent to assert an ADA claim—for associational discrimination or otherwise—despite the letter threatening claims of FMLA interference, FMLA retaliation, and other federal and state law violations. Rather, the only references to the ADA were in the EEOC charge itself, in which she stated that she suffered discrimination “on the basis of my disability” and was “terminated due to my disability,” emphasized the court. Thus, “[t]here is no reasonable reading of the EEOC Charge that suggests that Plaintiff raised a claim of associational discrimination therein.”

The case is No 3:24-cv-00323-WHR-PBS.

Judge: Rice, W.

Attorneys: Trisha M. Breedlove (The Spitz Law Firm) for Leah Warner. Trevor Matthew Nichols (Taft Stettinius & Hollister) for Health Carousel, LLC.

Companies: Health Carousel, LLC

Cases: EmployeeLeave Discharge DisabilityDiscrimination Discrimination Retaliation StateLawClaims TortClaims Whistleblowers OhioNews