Leave Policy/Compliance, Training

Worker Fired for Performance Problems Points to Retaliation Instead

An employer provided additional training to an employee with documented performance problems, but when her performance slipped again, she was fired. Noting that the termination occurred shortly after she took medical leave, the employee claimed that she was fired in retaliation for exercising her rights under the Family and Medical Leave Act (FMLA).


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What Happened

In 2007, “Bailey” started working as a substance abuse counselor at the Kaleidoscope Clinic run by START Treatment and Recovery Centers. Her duties included counseling about 50 narcotics-addicted patients. Each session with a patient typically lasted 30 minutes, and she was required to spend about 15 minutes after each session writing a patient note. START relied on counselors to write those notes to maintain its state certification and to bill Medicaid and other insurance companies. 

A more complex, state-mandated note-keeping method was adopted in 2011. Many counselors had a hard time adapting to the new method; in fact, 15% of them were fired because they failed to follow the new requirements.

Bailey was among those who struggled. In March 2011, START determined that her work was not up to par, and she received written warnings in April 2011 and June 2011. Her employer said that she had not achieved “required outcomes” in “compliance” and “documentation.” As a result, she was offered “enhanced training.”

Although she received a July 2011 performance review that was generally satisfactory and a pay raise in August 2011, any benefits from the training apparently were short-lived because she received additional warning memos in November 2011, December 2011, and February 2012. The latter memo indicated that she had only a 28% completion rate for her notes, compared to 90% to 95% for other counselors.

START put Bailey on a 90-day probation, citing “her on-going failure to perform [her] job duties as directed and/or within designated time frames despite verbal and/or written warnings.” Her employer twice extended her deadline for catching up on a backlog of patient notes, and on May 10, 2012, her direct supervisor recommended terminating her employment. She was fired 1 week later; START cited her failure to maintain up-to-date patient notes and “on-going failure to perform [her] job duties.”

Claiming instead that she was terminated in retaliation for exercising her FLMA rights, Bailey filed suit against her former employer.

She argued that she had requested medical leave on several occasions due to severe anemia and other conditions. Bailey’s first request to take FMLA leave was made in February 2011, but she cancelled the request, claiming that her supervisor had asked her to cancel it—an assertion that the supervisor denied.

Bailey took protected leave for treatment for anemia in August 2011, when she was hospitalized for 6 days. While on probation in 2012, she requested FMLA leave again, but she did not take it. Why not? She alleged that HR had told her that she was not entitled to FMLA leave while on probation. The HR contact who received Bailey’s request denied having said that. Bailey went to her doctor the next day but refused to be hospitalized because she feared that she would lose her job if she missed work.

While still on probation in April 2012, she was hospitalized for 7 days. She returned to work on April 28, 2012. Just 12 days later, her supervisor recommended her termination, which took place on May 18, 2012.

After losing a jury trial, Bailey appealed to the U.S. Court of Appeals for the 2nd Circuit, which covers Connecticut, New York, and Vermont.

What the Court Said

The appeals court vacated the decision and sent the case back to district court, saying the district court erred in some of its instructions to the jury.

The appeals court concluded that the type of FMLA retaliation claim in this case requires an employee to show only that the exercise of FMLA rights was a “motivating factor” in an employer’s decision to take an adverse employment action.

The district court had instructed the jury to use a different standard—specifically, the district court had said that Bailey had to “prove that … [her employer] would not have terminated her if she had not taken FMLA leave, but everything else had been the same.”

“Although there is evidence from which a reasonable jury could conclude that … [Bailey’s] deficient performance served as the sole basis for her termination, we are unable to conclude that that evidence is so overwhelming as to render the erroneous instruction harmless,” the court said, pointing to other jury instructions that also “resulted in impermissible prejudice” against Bailey.

Woods et al. v. START Treatment & Recovery Centers, Inc., et al. (No. 16-1318-cv) (U.S. Court of Appeals, 2nd Cir., 7/19/17)

In Brief

Whenever a new procedure is introduced, training can help ensure that it will be successfully implemented. Provide training on new procedures to all employees who will be using them, and make sure they understand the rationale for using the new procedures.

Include supervisors and managers in the training; they must be familiar with new procedures, too, so they can coach employees who might be struggling, identify additional training needs, and track employees’ progress toward mastering the new procedures.