HR Management & Compliance, Technology

Timing Matters: Employee Fired During FMLA Leave for Months-Old Problems

Though the following case is still in its infancy, it tees up several common concerns in employment litigation. A new supervisor arrives on the scene and starts pointing out performance problems for the first time (calling into question the veracity of the critique). The employee goes out on leave for medical conditions. The employer decides to fire the worker and points to performance issues that were addressed well before the leave began. Let’s look at the facts, as outlined by the U.S. 5th Circuit Court of Appeals in New Orleans (whose rulings apply to all Louisiana employers) and see what we can learn from them.

Employee Granted Leave . . . and Then Fired

James Hester worked for Bell-Textron, Incorporated, from August 1997 until December 2018 and held a variety of positions. He suffers from epilepsy (which causes him to have a series of grand mal seizures) and glaucoma. His wife has stage-four cancer, and he assists her by providing comfort and attending medical appointments.

In March 2017, Hester began reporting to a new supervisor, Vance Cribb, who was aware of the medical history. In June 2018, the supervisor issued Hester the first poor performance review of his career with Bell-Textron.

Then, in October 2018, Cribb issued Hester a final warning related to a part that broke during a testing procedure. The employee vigorously protested the final warning. He had to be escorted off the premises and was told to apply for an “employee assistance program” (EAP) based on his medical conditions.

Hester reached out to HR, which suggested he apply for short-term disability coverage. He did so, and it was granted. He also applied for and was granted leave under the Family and Medical Leave Act (FMLA) based on the same medical conditions.

That’s when things got messier. On December 6, 2018, while Hester was on FMLA leave, an HR employee fired him by phone, citing his “poor mid-year performance review from June 2018” (six months earlier) and stating “it was a good time” for him to leave.

Hester immediately looked into how much leave he had left and learned he had 5.4 weeks of FMLA leave for 2018 and then an additional 12 weeks in 2019.

Lawsuit Follows

Hester filed suit in federal district court and alleged two FMLA claims against Bell-Textron: (1) discriminatory termination while he was on FMLA leave and (2) interference with his right to reinstatement at the end of the leave. The former employer quickly asked the court to dismiss the claims without any discovery (pretrial fact-finding). The district court agreed the allegations were insufficient to state a claim, but the 5th Circuit didn’t.

Discrimination claim. There was no dispute over whether Hester was protected by the FMLA or suffered an adverse employment action. The parties did disagree, however, over whether he properly asserted causation between his FMLA leave request and the discharge decision.

The district court found Hester didn’t make the connection because he didn’t include any facts to suggest Bell-Textron impermissibly terminated him beyond timing. The company offered rationales for its discharge decision that were wholly unrelated to the exercise of his FMLA rights (such as poor performance and an ejection from the workplace).

The 5th Circuit easily recognized the temporal proximity between Hester’s FMLA leave and his termination because he was fired in the middle of his leave. The court also recognized he didn’t have to allege his protected FMLA activity was the only cause of his termination.

The appeals court further pointed to the alleged timeline of events and the fact Hester wasn’t fired at the time of his performance issues. Instead, the employer waited months to do so. The court reasoned the facts suggested the termination decision wasn’t “completely unrelated” to the exercise of his FMLA rights. For those reasons, the appeals court ruled he was entitled to proceed with the discrimination claim and the district court was wrong to dismiss it.

Reinstatement claim. There was no dispute that (1) Hester was an eligible employee under the FMLA, (2) his employer was subject to the law’s requirements, (3) he was entitled to the leave, and (4) he gave proper notice of his intention to take it. The parties couldn’t agree, however, on whether Bell-Textron denied him the benefits to which he was entitled under the Act.

To properly assert the claim, Hester was required to allege Bell-Textron denied him a benefit to which he was entitled under the FMLA. The appeals court found he did so by claiming the company interfered with his right to reinstatement by failing to restore him to his position at the end of his FMLA leave.

The 5th Circuit was clear that “denying reinstatement to an employee whose right to restored employment had already been extinguished—for legitimate reasons unrelated to his efforts to secure FMLA leave—does not violate the [Act].” But Hester wasn’t fired at the time of his poor performance review or even when he received the final warning from his supervisor. Indeed, he alleged the supervisor told him to apply for an EAP immediately after his outburst in response to the final warning.

The fact the supervisor didn’t simply fire Hester outright based on the poor performance suggested to the 5th Circuit that his right to restored employment was still intact when he secured the FMLA leave. As a result, the court ruled, he gets to pursue the reinstatement claim as well. Hester v. Bell-Textron, Incorporated, No. 20-11140 (5th Cir., Aug. 23, 2021).


Since Hester’s case has been sent back to the district court for trial, it’s just starting to get rolling. Thus, it remains to be seen how the facts will shake out in discovery and which party will ultimately prevail. But it does offer an important reminder to employers: Timing matters.

If an employee isn’t meeting expectations, address the issue promptly. Sitting on a performance problem benefits no one: The worker isn’t given the chance to improve, and the basis for the employment decision starts to get stale. Or, as happened here, the employee may subsequently engage in protected activity, which adds an additional hurdle. When the proper approach isn’t cut and dried, it’s always a good idea to consult employment counsel.

Maggie Spell is a partner in Jones Walker’s labor relations and employment practice. She can be reached in New Orleans at

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