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A federal judge has refused to dismiss a suit under the Family and Medical Leave Act brought by a former corporate vice president who claims he was told on the day he returned from a three-month leave that his job had been eliminated in a “restructuring” and that his new position came with a $20,000 pay cut. In her 12-page opinion in Heron v. American Heritage Federal Credit Union, U.S. District Judge Petrese B. Tucker found that a jury must decide two key factual disputes — whether a true restructuring ever took place and, if it did, whether it was truly planned prior to plaintiff Dennis Heron’s FMLA leave. The decision rejects a summary judgment motion in which defense attorneys portrayed Heron as a worker who quickly grew unhappy with his job and complained during his one year of employment that he was “overwhelmed” with work he couldn’t finish and was never given enough assistance. In their motion, defense attorneys Sandra A. Girifalco and Melissa C. Angeline of Stradley Ronon Stevens & Young argued that “the right to reinstatement under the FMLA is not absolute,” and that Heron’s complaints about his workload had led the company to consider restructuring its marketing department before Heron ever requested a leave. As a result, they argued, Heron was entitled only to reinstatement in the newly created position which paid less because it came with fewer responsibilities. But plaintiff’s attorney William J. Fox argued in his reply brief that the defense motion “goes to great length to split hairs, ignore evidence and, frankly, misstate the facts of this case.” Fox argued that American Heritage fell far short of its burden of proof for its claim that the elimination of Heron’s position had nothing to do with his exercise of FMLA rights. “The evidence defendant relies upon to justify its decision to essentially demote Mr. Heron and reduce his pay by $20,000 is self-serving post hoc fabrication,” Fox wrote. Fox argued that there was “no credible evidence that suggests that defendant considered eliminating Mr. Heron’s position of vice president of marketing until just before Mr. Heron returned from medical leave.” Instead, Fox argued, a jury “will likely believe that Mr. Heron was demoted, the day he returned � as punishment for taking [leave].” According to court papers, Heron was hired in June 2000 by American Heritage, a federally chartered credit union in Philadelphia, for the post of vice president of marketing at a salary of $78,000. In July 2001, Heron was granted a leave under the FMLA. Heron’s lawyer contends that the reason for the leave was medical and that Heron suffered from depression, anxiety, headaches, dizziness and loss of appetite. Defense lawyers contend that Heron took the leave due to “work-related stress.” When the leave expired in October 2001, Heron claims he returned to work and was told on his first day back that his position had been eliminated due to a restructuring of the marketing department. The suit says Heron was given 24 hours to decide whether he would accept the newly created position of marketing manager — at a salary of $58,000 — and that his new duties would be essentially the same except that he would no longer oversee the work of the business development manager. Heron claims he chose not to return because the job was not equivalent to his prior position. Tucker found that, to succeed on an FMLA claim, a plaintiff must prove three things — that he took FMLA leave; that he suffered an “adverse employment decision;” and that the adverse decision was “causally related” to his leave. Heron easily satisfied the first and second prongs of the test, Tucker found. “Neither party can dispute the fact that the position offered to the plaintiff after he returned from FMLA leave was not the equivalent of the position that he had prior,” Tucker wrote. “Not only did plaintiff’s job title change from ‘vice president of marketing’ to ‘marketing manager,’ arguably a change in status, but his salary was reduced by $20,000, clearly a change in pay,” Tucker wrote. Tucker found that the key dispute for summary judgment purposes centered on American Heritage’s claim that Heron could not be restored to the vice president post because the position was eliminated during a restructuring of the department. Defense lawyers argued that the decision was made in part because Heron had complained that his duties were overwhelming, and had previously requested that some of his duties be removed. But Fox said in his brief that the evidence showed that the decision was made immediately before Heron returned and could therefore be rejected by the jury as an “after-the-fact justification.” Defense lawyers pointed to a memo written by Heron’s boss at the time of Heron’s annual review that, they said, showed he was planning the restructuring a month before Heron took his leave. But Fox insisted that the memo was unreliable since it was contradicted by the boss’s written comments in Heron’s review. The review, Fox noted, said that Heron was “meeting expectations” and listed improvement of the business development department as one of Heron’s future goals. Since the alleged restructuring eliminated the business development department from Heron’s job, Fox argued that it would have made no sense to urge Heron to work on improving that department if the restructuring was already being planned. Tucker sided with Fox and found that the defense evidence was not strong enough to warrant dismissal of the case. “It is not clear whether the restructuring of the marketing department was planned prior to plaintiff’s leave. In fact, it is not clear that there was a ‘restructuring,’” Tucker wrote. If the newly created position did entail significantly less responsibility, Tucker said, it was likely that there was a true restructuring of the department and that there was no “equivalent position” available when Heron returned. And if the jury sided with American Heritage on those points, Tucker found that it could return a defense verdict on the grounds that Heron would not have been entitled to his old position even if he had never taken leave. But Tucker said the jury could also decide that the newly created position was “really the position of vice president of marketing with lower pay and different status � thereby negating the possibility that an actual restructuring took place.” Tucker found that since both sides were relying on some of the same evidence to prove their arguments, a jury would have to decide which side was drawing the more reasonable inferences. While American Heritage claims that Heron’s boss was unhappy with his performance and gave him a tepid review — merely saying he “meets expectations” — Tucker found that Heron could argue that the review was “neutral, if not positive” since he also received a 5 percent raise. As for the memo that allegedly shows the restructuring was planned prior to Heron’s leave, Tucker found that the jury could question its veracity and reject it. “If [Heron's boss] had planned on removing the business department from plaintiff’s responsibilities prior to plaintiff’s request for medical leave, why did [the boss] list ‘redevelop business development department’ as one of plaintiff’s future goals?” Tucker wrote. A jury, Tucker said, could decide to rely on the review and conclude that Heron’s boss planned to leave the business development department as one of Heron’s responsibilities until he took FMLA leave.

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