No harm/no foul means no FMLA violation in Texas appeals court

The Family and Medical Leave Act (FMLA) empowers an employee to file an interference claim—that is, a claim based on actions taken by an employer to discourage or dissuade an employee from seeking FMLA benefits. But in Texas, mere interference is insufficient to state a claim. In addition, there must be an allegation that the employee was somehow harmed by the interference. No harm, no claim. For a recent case from Houston, read on.

Discouragement galore!

Duy Dihn Do worked as a manager for Comcast Cable Company. He claimed his managers told him to actively discourage employees from taking FMLA leave. In specific, management directed their purported animus toward Jessica Edge—one of his direct reports. This included saying to Do that she “is lucky to have a job to return to [after FMLA leave] . . . we want to hold her accountable.” And on another occasion, he claimed management described Edge “a disruptive employee” based on “her long [leave of absence]” and that the company would like “to fire her.”

All this got to be a bit much for Do, who took FMLA leave for his own mental health issues related to these threats. While he was on leave, Comcast fired him because of alleged poor performance. He sued for FMLA interference, and in his lawsuit, he recited the various comments about Edge.

What’s missing?