HR Management & Compliance

Performance Issues for FMLA-Qualified Employee Still Equal Termination

This content was originally published in April 2009. For the latest FMLA regulation changes, visit our FMLA article archives or try our practical FMLA compliance guide.

An Indiana worker repeatedly exceeded her employer’s absence limit, failed to follow safety procedures, and neglected the quality control part of her job, allowing an expensive production error to occur. When she was fired, however, she sued.

What happened. “Morgan” joined Hill’s Pet Nutrition at its Richmond factory in 1995. Her primary task was to run an extruder that ground dog food and cut it into kibble. By 2000, she began a series of absences under the Family and Medical Leave Act (FMLA) that continued until she was fired in 2003. Hill’s did not offer sick leave; instead, if an illness qualified for FMLA, the company paid the individual while he or she was out. If it did not qualify, the time was counted as unexcused absence.

Many of Morgan’s absences were apparently qualified under FMLA, but not all. In 2001, therefore, she was put on a progressive discipline plan that lasted until her termination 2 years later. Beyond the excessive absence, she slipped and fell near the extruder she operated. Workers’ compensation covered the injury, but Hill’s determined that Morgan had been standing on the “at risk” side of the machine, a violation of safety procedures.

Not long after that incident, she one day allowed 50,000 pounds of kibble through the line, which was too much—a quality control error. Next, she told a Hill’s counselor that she was depressed and took time off for that problem—but sought no treatment. That was the last straw for Hill’s, which notified her that she had self-terminated by failing to come to work.

Morgan then sued for interference with her FMLA rights, sex discrimination, and retaliation for her role as a witness in an earlier sexual harassment suit. A judge in federal district court dismissed all her claims, and she appealed to the 7th Circuit, which covers Illinois, Indiana, and Wisconsin.

What the court said. Appellate judges found first that Morgan had not shown she had a serious or chronic health condition, so she wasn’t eligible for FMLA leave.

Next, they turned to her claim that male employees had not been as harshly disciplined as she for similar quality control errors. However, she couldn’t name an employee with a similar job description who had made a mistake like hers.

Finally, judges saw no connection between Morgan’s testimony for a former co-worker and Hill’s decision to terminate her. So her charges were dismissed again.

Point to remember: To qualify for FMLA leave for a serious health condition, an employee must be treated by a healthcare provider, at the very least.

Case: Caskey v. Colgate-Palmolive and Hill’s Pet Nutrition, U.S. Court of Appeals for the 7th Circuit, No. 06-2919 (2008).

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