When you must defend your decision to fire an individual based solely on his poor performance, no one likes the idea of having to scale a circumstantial Mount Everest in a court of law. But a cohesive paper trail of evidence is critical when you are asked to establish legal footing and justify your adverse employment action, particularly when the job termination occurs shortly after the employee’s return from federally protected medical leave.
To be clear, the Family and Medical Leave Act does not require an employer to adjust its performance standards for the time an employee is actually on the job. Employers, however, would be wise to adjust their performance standards to avoid penalizing an employee for being absent during FMLA-protected leave.
For example, if you terminate a salesperson for not meeting his sales quota and count the days that he missed for FMLA leave-related treatment in your performance assessment, then your measuring stick — inevitably examined as a genuine issue of material fact in a courtroom — is likely to raise eyebrows about whether you had a legitimate, nondiscriminatory ground for termination.
This brings us to the circumstances behind the firing of a high-paid sales account manager with a company car and a track record of large sales commissions. The timing of a supervisor’s abrupt evaluation and the account manager’s subsequent discharge proved suspicious and incongruous enough for an appellate court to reverse an Illinois district court’s summary judgment in the employer’s favor. The case is Pagel v. TIN Inc., No. 11-2318, 7th Cir. (Aug. 9, 2012).
Jeff Pagel, an account manager whose heart ailment qualified as a serious health condition under FMLA, succeeded in advancing his interference and retaliation claim against TIN Inc., a custom display manufacturer and supplier.
The 7th U.S. Circuit Court of Appeals agreed with Pagel’s primary argument that TIN’s claim of poor performance appeared to serve as “mere pretext” to his termination.
TIN seemed to hurt its defense by basing too much of Pagel’s poor performance on a one-day “sales ride-along,” a standard company practice in which the regional sales manager observes and evaluates the account manager’s performance on scheduled, in-person calls.
The timing of the hastily planned evaluation by the regional sales manager — just one day after Pagel had returned from testing for an irregular lung mass — worked against TIN.
Because the regional manager only provided Pagel one day of notice to set up and prepare the sales calls, the “request for a ride-along, at least at summary judgment, looks suspicious,” the appeals court found. “The record suggests that account managers need time to set up a sales call — perhaps as much as one week … A reasonable jury could interpret this evidence as [the regional manager] setting up Pagel for failure.”
TIN also claimed that other pertinent grounds existed to find that Pagel’s performance had become unacceptable. For example, TIN contended that Pagel’s sales revenue and volume had declined and he had identified no new target customers, nor had he contacted two prospective customers in his territory.
This independent data alone, TIN argued, should permit Pagel’s firing. However, the accuracy of much of the documented evidence that TIN supplied to the courts remains in dispute. For example, the appeals court opined, if TIN’s claims about the drop-off in sales revenue and volume were true, then Pagel’s annual salary of $180,000 (base pay plus commission) should have declined instead of remaining stable.
Takeaway Nugget
Measuring the productivity of employees who take any form of leave in the same manner as those who don’t take leave is a hard practice to defend to a jury. Employers should avoid this problem by enacting a written policy that exempts employees who are on FMLA leave from performance or productivity-based evaluation during the entire period of the leave. This avoids having periods of protected leave play any role in the process.
For additional information about the FMLA and termination, see Thompson’s employment law library, including the Family and Medical Leave Handbook.