Employment Law Questions? Ask an Employment Lawyer.
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If you can prove that you were not rehired because of your FMLA leave, that would constitute illegal retaliation and give rise to a claim for damages. The issue will be whether that was actually your employer's true motivation. Rarely is there smoking gun evidence in a case like this so you will need to prove motivation circumstantially.
So, what will likely need to be known is how much more qualified you are than the person who is hired? Were there any personality conflicts that might have formed the basis for you not getting the job? Can your employer actually prove they received feedback that disqualifies you for the position (they don't have to reveal it now, but you can bet they will reveal anything they have if they are sued because this will factor heavily into their defense). There is also a common sense question, which is why, if their intent was to retaliate against you for FMLA usage, would they have gone out of their way to say that they receive negative feedback about you and that is the reason they are not considering you? Why would they fabricate that when, if their intent was to retaliate, they could have simply said "We carefully considered your application and have decided to go with another applicant."
Ultimately, your employer's TRUE motivation will be a factual question for a jury to decide. So, it's impossible to say with any certainty whether a claim would be likely to succeed. It's certainly possible though, but it just completely turns on the specific facts. I would contact some local attorneys to see if any are interested in getting involved on a contingency fee basis.
If I can clarify anything at all for you, please do not hesitate to ask. It is my pleasure to assist you further if necessary....
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