Labor & Employment Law Daily Wrap Up, RETALIATION—W.D. Ky.: Psychologist required to work in person not subject to adverse employment action, (Dec 9, 2025)

By Molly Platnick

A healthcare company did not retaliate against the psychologist for taking FMLA leave.

A federal district court in Kentucky granted a healthcare company’s motion for summary judgment in a case brought by a psychologist who resigned after being required to work in person. The psychologist alleged the company engaged in FMLA retaliation because it would not accommodate her request to indefinitely work from home. The company contended that it could not have retaliated because the psychologist was ineligible for FMLA. Ultimately, the court found the psychologist was not subject to an adverse employment action when she was required to work in person and her resignation did not constitute a constructive discharge. (Threkeld v. Norton Healthcare, No. 3:23-cv-439-RGJ (W.D. Ky. Dec. 5, 2025)).

The plaintiff was a clinical psychologist and assistant professor in the University of Louisville (UofL) School of Medicine’s Department of Pediatrics. On March 1, 2020, UofL merged with Norton Healthcare to establish a Children’s Medical Group. The merger made all UofL pediatrics’ faculty employees of the healthcare company. The psychologist was designated a “.65 clinical full-time equivalent” and the healthcare company was responsible for her benefits, including FMLA leave.

COVID-19. On March 23, 2020, the psychologist began experiencing COVID-19 symptoms and her supervisor directed her to contact the “Employee Health” department. Employee Health retroactively approved her for FMLA leave from March 25 through April 14, 2020. The psychologist began working from home via telehealth on April 15th. On May 5, the healthcare company announced mental health providers and staff would be required to return to in-person work by May 11th. The psychologist told her supervisor she could not go back to the office because of increased anxiety, and she was approved to continue working from home until June 1.

Leave of absence. The psychologist began a 28-week leave of absence on June 22: FMLA leave from July 18 through September 15, 2020, “non-FMLA” leave until October 16th, and “unspecified medical leave” until January 2, 2021. The healthcare company stopped paying the psychologist a salary on July 1, 2020. Around this time, they notified her she was being replaced as Training Director of the hospital’s Child Clinical/Pediatric Psychology Predoctoral Internship Program. The healthcare company also hired an additional pediatric neurology psychologist.

Resignation. In November 2020, the psychologist met with her supervisors to discuss her options after her leave ended on January 2, 2021. The healthcare company notified her she could take long-term disability, return in-person, or resign, and denied her request to be allowed to continue working from home.

The psychologist submitted her resignation on December 30, 2020, effective January 2, 2021. She brought this case against the healthcare company on August 25, 2022, alleging one count of FMLA retaliation.

FMLA eligibility and estoppel. The court found there was a genuine dispute as to whether equitable estoppel barred the healthcare company’s ineligibility defense. The issue was whether the healthcare company was estopped from raising the psychologist’s FMLA ineligibility as a defense because it repeatedly approved her for leave. The Sixth Circuit applies the “traditional test” for equitable estoppel, and a plaintiff must show: (1) definite misrepresentation of material fact; (2) reasonable reliance on the misrepresentation; and (3) detriment to the party that reasonably relied on the misrepresentation.

Here, the court found the psychologist met all three elements. The healthcare company misrepresented the psychologist’s amount of FMLA leave when it approved her leave from March 25 to April 14 but later sent a letter stating she had been “mistakenly approved.” The psychologist relied on the representation she was eligible for FMLA leave, as her “decision to take FMLA leave was contingent on Norton’s approval of that leave,” and this reliance was to her detriment.

Even if the healthcare company was not estopped, the court concluded it could not prove its defense the psychologist was ineligible. The healthcare company’s policy requires staff to be employed for 12 months before taking FMLA leave and claimed the psychologist used all her UofL leave when she took almost 12 weeks off for maternity leave. However, the court referenced the record which revealed the psychologist took 10 weeks of parental FMLA leave.

McDonnel Douglas. Next, the court concluded that requiring the psychologist’s resignation was not a constructive discharge in retaliation for her taking FMLA leave.

The court applied the burden-shifting framework from McDonnel Douglas to determine whether the healthcare company discharged or discriminated against the psychologist for requesting FMLA leave. Here, the healthcare company argued the psychologist could not show she suffered an adverse employment action or that there was a causal connection between her FMLA leave and termination.

Adverse employment action. The psychologist stated she suffered an adverse employment action when: (1) she was stripped of her leadership position at UofL; (2) “replaced” by another pediatric neurology psychologist; (3) refused further accommodation to work from home; (4) denied a raise to which she was entitled; and (5) constructively discharged when she was told could take long-term disability, return in-person, or resign.

Requiring the psychologist to work in-person was not an adverse employment action, said the court. Her supervisors told her she could take long-term disability, return in-person, or resign. The psychologist claimed she was denied reasonable accommodations, but the only accommodation she would accept was being allowed to indefinitely work from home. She contended the healthcare company’s refusal to let her work remotely was “arbitrary,” but “does not explain or cite any authority showing…an arbitrary decision…may be actionable as an adverse employment action in an FMLA retaliation claim.”

No constructive discharge. A resignation can qualify as an adverse employment action if the employee was constructively discharged, explained the court. Here, the record suggested she was faced with a rock-and-a-hard-place choice between resignation and continued employment on “less favorable terms,” including “threat of termination during serious illness, loss of key duties, arbitrary pay changes, documented efforts to restore duties rebuffed or ignored.” However, the evidence suggested the healthcare company wanted the psychologist to return to work. The company could have replaced her after 12 weeks and her supervisor wrote in an email, “I will fight tooth and nail to ensure that your position remains your position until you tell me you don’t want it.”

Pay raise. As to the psychologist’s claim that she was denied a raise to which she was entitled, the court found this claim was irrelevant because UofL was not a party to this case and evidence suggested the healthcare company “did not have any input or decision making authority” in the psychologist losing her leadership position. The record suggested the psychologist was not “replaced” by a new colleague but rather her supervisor explicitly told her, “The recruit for neurology does not take your place, it is in addition to.” The court acknowledged the psychologist may have been entitled to a raise at some point but found the healthcare company did not have the “opportunity to implement the raise” because the psychologist went on leave before it could take effect.

Causal connection. Even if the psychologist could show she had been constructively discharged, there was no causal link between her medical leave and her termination. The psychologist resigned in November 2020, eight months after her original FMLA leave, five months after she was approved for additional FMLA leave, and three months after she exhausted her FMLA leave. The court concluded that if the psychologist was subject to an adverse employment action, it was because she refused to work in person, not because she took FMLA leave.

The case is No. 3:23-cv-439-RGJ.

Judge: Jennings, R.

Attorneys: John S. Friend (Friend Law) for Brooke Threlkeld. Todd B. Logsdon (Fisher & Phillips) for Norton Healthcare Louisville.

Companies: Norton Healthcare Louisville

Cases: Retaliation Discharge EmployeeLeave Covid19 KentuckyNews