Plaintiff failed to demonstrate that she suffered an adverse employment action when an employer never filled the position for which she applied.

The plaintiff alleged that her employer discriminated against her and retaliated against her, in violation of the Americans with Disabilities Act ("ADA") and the Family and Medical Leave Act ("FMLA"), when she was not permitted to interview for a promotion to a management position. There, the plaintiff was diagnosed with bipolar disorder and took a six-week medical leave of absence while she was employed with the defendant. Shortly after she returned from her medical leave, she was informed that there was a vacancy in a management position at the facility. The employer chose not to interview the plaintiff for the position and, ultimately, no one was hired to fill the management position. As a result, the employer argued that the plaintiff could not demonstrate that she suffered an adverse employment action—as required by the ADA and FMLA—because the position for which she applied was never filled and did not remain open. The court agreed, stating that "[i]n the end…no one was promoted" and, therefore, "[Defendant] did not make an adverse employment decision." In so holding, the court reasoned that the employer's decision not to interview the plaintiff did not constitute any sort of change in her employment situation. The court, however, found that the plaintiff presented sufficient evidence in support of her retaliation claims. Specifically, the court noted that the decision not to interview the plaintiff for the position was made shortly after she returned from her medical leave and shortly after she complained about a supervisor. As a result, the court reasoned that "a reasonable worker would be dissuaded from complaining about such treatment if complaining meant that she would be denied an interview that could lead to a promotion."

Case Law Alert - 4th Qtr 2010