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IT Exec’s FMLA Leave Not a ‘Fire’wall

Employers are often hesitant about taking adverse action against employees who are on Family and Medical Leave Act (FMLA) leave, even when there is good reason to do so. But employees aren’t entitled to any right, benefit, or position of employment that they wouldn’t have been entitled to if they hadn’t taken FMLA leave. A recent Seventh Circuit decision reminds us that FMLA leave doesn’t render an employee impervious to disciplinary action, including termination, when such action is warranted.

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Poor compatibility
Michael Daugherty began working as a maintenance assistant for Wabash Center, Inc., in May 1999. By 2006, he had risen to the position of vice president of information technology. He consistently received “very good” or “excellent” performance reviews and was rewarded for his leadership. He also functioned as an executive for Rest Assured — a joint venture with Wabash that was based on his idea to monitor Wabash patients via webcam.

But in spring 2006, Daugherty began having problems with Wabash and Rest Assured employees. He engaged in “e-mail wars” with several employees, and others complained about his management style. In June, he was issued a written reprimand based on the complaints. He didn’t disagree with the substance of the accusations. In fact, he drafted his own corrective action plan. For business reasons unrelated to his discipline, Wabash president Jeffrey Darling revoked permission for Daugherty to take a month-long vacation that was set to begin that month.

Control-alt-delete
Steve McAninch (Daugherty’s direct supervisor and Wabash’s VP of finance) had planned to discuss the corrective action with Daugherty. However, before he could, Daugherty went to see his doctor, who issued a note stating that he was to be “off work 2 weeks due to medical illness.” In his leave request, Daugherty described his “illness” as having been “placed under a tremendous amount of stress.” He claimed to have requested from Darling and McAninch a “reorganization that would alleviate this stress” and cited his canceled vacation. He ultimately requested and received two weeks off.

While Daugherty was on leave, Wabash uncovered more trouble. For one, Daugherty had made large unauthorized purchases with his company credit card. Furthermore, Wabash determined — after two of its servers crashed and consultants were hired to restore them — that he hadn’t routinely backed up the servers, which was one of his key responsibilities. Additionally, the consultants discovered numerous deficiencies in Wabash’s IT infrastructure, including security gaps.

At one point during Daugherty’s leave, Darling requested that he turn over his keys and passwords to allow Wabash personnel to access the IT systems. Daugherty replied that he’d “rather not” and refused to comply with the request. Finally, a forensic expert retained by Wabash discovered that Daugherty had deleted more than 5,000 e-mails from the system on the date he invoked his FMLA leave. Citing his authoritarian management style, poor IT practices, violations of purchasing procedures, and other issues, Wabash terminated Daugherty’s employment.

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(Job) security breach
Daugherty claimed that his termination violated the FMLA. Specifically, he argued that (1) Wabash was required to reinstate him from leave before it discharged him or, in the alternative, (2) the company retaliated against him for exercising his FMLA rights when it fired him. The court disagreed. As to Daugherty’s first argument, the court observed that the FMLA entitles employees only to a position they would have otherwise been entitled to had they not taken leave. Additionally, the employer may terminate an employee who is on leave if it uncovers misconduct justifying termination. The court concluded: “The fact that the leave permitted the employer to discover the problems cannot logically be a bar to the employer’s ability to fire the deficient employee.”

Addressing Daugherty’s alternative argument, the court found that Wabash had provided ample evidence of his misconduct to justify termination. Thus, he couldn’t show that his discharge resulted from the exercise of his FMLA rights. In fact, he admitted as much when he stated in his brief that “Darling and Wabash Center are earnest in their appraisals that they fired [me] for performance reasons. They really, really mean it.” Referring to Daugherty’s statement, the court noted that if Wabash and Darling really meant that they terminated his employment for poor performance, then the termination was not retaliatory. Daugherty v. Wabash Center, Inc. , No 08-3104 (7th Cir., Aug. 14, 2009).

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Compiling the data
This decision should provide comfort that an employee on FMLA leave is not immune from discipline, including firing, simply because he is on leave. That principle is true even if discovery of the employee’s misconduct is occasioned by the leave, as this case shows. If you discover performance problems with an employee while he’s on FMLA leave, the question to ask is what you would do if he weren’t on leave.