Barbara Neisendorf, a vice president at Levi Strauss & Co., had serious performance problems during her 2 years at the company. Supervisor Fred Paulenich documented the deficiencies and discussed them with Neisendorf, but she refused to accept responsibility.
Shortly after the performance meeting, Neisendorf began an 8-week medical leave for a panic disorder. At the end of the leave, Neisendorf’s psychiatrist cleared her to return to work if she received accommodations. Neisendorf presented Levi Strauss with a list of proposed accommodations, including hiring a neutral job coach to help engender a better working relationship between Neisendorf and Paulenich.
Employer Facilitates Return to Work
Levi Strauss told Neisendorf that it didn’t believe she was disabled, but it nevertheless spent the next several weeks working with Neisendorf to identify accommodations. They eventually agreed on accommodations, but the company told Neisendorf that her return was conditioned on her willingness to acknowledge and address her performance problems.
Neisendorf finally returned to work 14 weeks after the leave began. That same day, she and Paulenich met for 2 hours to discuss her performance. Later that day, Neisendorf was terminated. The termination letter cited Neisendorf’s unwillingness in that meeting to acknowledge her performance issues, and that they couldn’t reach agreement on key performance matters.
Employee Charges Retaliation
Neisendorf sued, charging that her termination was in retaliation for taking protected medical leave under the California Family Rights Act (CFRA). What’s more, she claimed, CFRA required the company to provide her with accommodations so she could return to work at the end of the leave.
Levi Strauss argued that it discharged Neisendorf for performance reasons, not in retaliation for her taking CFRA leave. The company also contended that it had no reinstatement obligation because she wasn’t released to return to work without restrictions at the end of her 12 weeks of CFRA-protected leave. Levi Strauss also claimed that while Neisendorf said she was ready to come back to work when the 12 weeks expired, she demanded accommodations—which the company had no duty to provide because Neisendorf was not disabled—and it was the accommodation discussions that took her over the 12 weeks of CFRA leave.
A San Francisco jury sided with Levi Strauss, and Neisendorf appealed. Now, a California appeals court has affirmed the verdict.
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Job Protections Limited
The court explained that CFRA doesn’t require an employer to provide accommodations to an employee to allow the employee to return to work by the 12-week job-protected limit. Further, an employee on CFRA leave has no greater protection against termination for reasons unrelated to CFRA than any other employee at the company not on leave.
The court concluded that Levi Strauss had a legitimate, nondiscriminatory reason for terminating Neisendorf. And, even though Neisendorf wasn’t disabled, the company nevertheless worked to find accommodations so she could return to work and then reinstated her 14 weeks after the leave began. All along, however, Levi Strauss made it clear that on return to work, Neisendorf had to address her performance problems which existed when the leave commenced. The company promptly terminated her the day she returned to work because it was immediately clear she couldn’t commit to working on those issues.
Cautions for Employers
Despite the favorable outcome for the employer in this case, there are several cautions for employers. First, if an employee who is on CFRA leave also qualifies as disabled under state or federal disability bias laws, you may have to provide a reasonable accommodation to permit the employee to return to work. You may also have an obligation to keep the employee’s job open beyond the 12-week CFRA limit.
Second, if you take disciplinary action against an employee who has recently taken a CFRA leave, it is critical that your legitimate reasons are well documented. Here, Levi Strauss successfully dodged the CFRA retaliation issue because it had personnel records demonstrating Neisendorf’s performance problems and the company’s response to them even before the leave came up.
Additional Resource:
Neisendorf v. Levi Strauss & Co, Calif. Court of Appeals (Dist. 1) No. A109826, 2006