Here’s a tale from the U.S. 5th Circuit Court of Appeals (whose rulings apply to all Texas employers), which told a Texas trial court that it erred in dismissing a Family and Medical Leave Act (FMLA) retaliation lawsuit against the city of Granbury. In deconstructing the appeals court’s opinion, we see how judges—like each and every one of us—fit facts into a narrative framework. And guess what, this framework drives the case result. As you read the following facts, ask yourself one question: What narrative were the appeals judges constructing?
Taking FMLA Leave
Jessica Murillo is a mother who worked for the city of Granbury. Special legislation enacted during the pandemic allowed employees to take FMLA leave for childcare. That’s what she applied for, and her leave was granted. And that, as they say, is where the story starts. The following then allegedly occurred:
- At the behest of Murillo’s manager, a coworker told Murillo the manager wanted her to return to work.
- A different coworker visited Murillo’s home and asked when she was coming back to the office.
- The city’s policies required employees on leave to check in with their managers periodically. She did so. After doing so, her manager emailed her to ask, ”Jessica, are you coming back to work?”
So, you see the arc of the narrative developing, don’t you?
Murillo and her manager later spoke over the phone while she was still on approved FMLA leave. As you might suspect, recollections of this conversation varied. She claimed she felt threatened, that the manager’s tone was one of anger, and that he needed “immediate assistance” at work.
Murillo asked about other options, so she wouldn’t have to return to work. Her manager told her no. She then complained to HR about the manager’s attitude. The HR manager assured her nothing would happen to her and stressed that she needed to return to work on June 24. Murillo pleaded her case, offering options but did not hear back.
‘Oh Joy, Oh Joy!’
Murillo didn’t return on June 24. The HR manager allegedly responded, “Great! I was hoping she wouldn’t come in. Let’s term her.” The recorded reason? You got it: “job abandonment.” (More on this ubiquitous rationale in a minute.)
Murillo sued for FMLA retaliation. The trial court tossed the claim, but the appeals court said, “Not so fast” for the following reasons:
- Look at your own policies that call for progressive discipline for matters that warrant immediate termination for egregious misconduct. And an unexcused absence ain’t it.
- You fired her within “minutes” of her not showing up. There were other options—call her, email her, ask around to see if she is ok. Picking the most drastic option in these circumstances permits a jury to infer that an unlawful motive (i.e., retaliation for taking FMLA leave) motivated the city.
- It was reasonable to believe Murillo was simply waiting to hear back from HR. Not getting back to her was a trap of sorts to lure her into not coming in. And a jury could conclude that was the case.
- There was evidence her manager was unhappy with her not being at work.
- Oh, and Murillo’s employment history with the city was spotless.
In short, a jury needs to decide whether she was fired for a legitimate reason or for an unlawful one. Murillo v. City of Granbury (5th Cir.; 2023).
When I was in practice, I went on high alert whenever a client wanted to invoke “job abandonment” as a termination reason. Somewhere along the line, this reason became an all-purpose rationale, but standing alone, it’s just a worthless conclusion without any context.
This case doesn’t mean you can’t terminate an employee who fails to return from leave. More was at play in this case than merely not returning from an approved leave.
Finally take this advice to heart: Stop your termination process whenever you find yourself happy that you are firing an employee. A termination should be a time for reflection, not jubilation.
Michael P. Maslanka is a professor at the UNT-Dallas College of Law. You can reach him at email@example.com.