Here we present a leave-related workplace scenario—inspired by an actual court case—that’s intended to help HR professionals better understand an employer’s responsibilities under the Family and Medical Leave Act (FMLA). In this scenario, the employer fired an employee for “unresolved, previously discussed performance issues” —but they did it right after the employee returned from leave. Then we answer related hypothetical questions about what the employer should or could have done differently.
The Facts
John was a customer service assistant for ACME, Inc., a company that develops and sells software. After his first year of employment, John received a written performance review earning an overall performance rating of “meets requirements.” In the performance review, however, it was noted that his performance in the areas of planning and organization of work, and relationships with coworkers were marginal and required improvement.
In particular, it noted excessive use of the Internet during work hours and that John was argumentative and abrasive with his coworkers, often interrupting them in the middle of conversations. John submitted a written response to the review protesting the comment about the excessive use of the Internet.
Later in the year, two of John’s coworkers complained to their supervisor that John was belligerent to a customer on the phone. At around the same time, it was noted that John failed to timely and correctly complete a project, and had failed to correctly complete paperwork for grading customer calls. Shortly after these incidents, John’s manager left the company and was replaced by Clive. Prior to leaving the company, the manager told John that he spoke to Clive and that he thought John was “safe.”
After Clive arrived, John told Clive that in April he had spoken to his former manager about taking 2 weeks off in October for the birth of his child, and that the time was approaching for his leave. John did not formally request FMLA leave and the company did not provide him with FMLA paperwork. The company did, however, provide him with the 2 weeks of PTO he requested.
John was upset that he was charged for 2 weeks of PTO, claiming he had an arrangement with his former manager that he would be permitted to work from home for one of the weeks. Clive informed John that he had not approved such an arrangement and it was against company policy. John became angry and raised his voice, banging his fist on the table.
Shortly thereafter, John’s employment was terminated for “unresolved, previously discussed performance issues.” John sued ACME, Inc., for interference with his FMLA rights and retaliation for exercising his rights to FMLA leave.
The Law
In Brown v. Scriptpro, LLC, 700 F.3d 1222 (10th Cir. 2012) (the case that inspired this hypothetical), the Court of Appeals for the Tenth Circuit granted summary judgment for the employer on claims of interference with FMLA rights and retaliation.
Under the FMLA, it is unlawful for an employer to interfere with, restrain, or deny the exercise or attempt to exercise any right provided under the FMLA. To succeed on an interference claim, an employee must show that (1) he was entitled to FMLA leave, (2) an adverse action by his employer interfered with his right to take FMLA leave, and (3) this adverse action was related to the exercise or attempted exercise of the employee’s FMLA rights.
The employee need not establish that the employer intended to interfere with his FMLA leave. An employer has a defense to an interference claim if it can establish that the employee would have been terminated anyway.
In order to establish a claim of retaliation under the FMLA, an employee must establish a prima facie case including that (1) the employee engaged in protected activity, (2) the employer took an action that a reasonable employee would have found materially adverse, and (3) there is a causal connection between the protected activity and the adverse action. The burden then shifts to the employer to establish that it had a legitimate, nondiscriminatory reason for the termination. The burden then shifts back to the employee to show that the employer’s reason is a pretext for discrimination.
Questions
1. Could ACME, Inc., establish that it would have terminated John’s employment regardless of his leave?
In looking at a claim of either interference or retaliation, courts will consider how close in time the adverse action—in this case termination—was to the employee’s exercise of his FMLA rights. Clive became the employee’s manager and shortly thereafter, John took his leave for the birth of his baby. When he returned, he was terminated. John is able to show close proximity.
In addition, before John’s prior manager left the company, he told John he was “safe” and, according to John, had approved his work-from-home arrangement during leave. Moreover, John had not been given any formal feedback after the performance review and his manager did not set up specific goals for him with regard to the marginal ratings on the performance review.
On the other hand, ACME, Inc., could establish the following:
- John had received negative feedback on his performance review earlier in the year, especially with regard to his relationships with coworkers;
- In the performance review, John received marginal ratings with regard to planning and organization of work, and work relationships, and the review indicated that John must improve in these areas;
- Performance problems continued after John received the performance review including missed deadlines, an incomplete project, and a complaint from coworkers; and
- John became angry and slammed his fist on the desk when speaking to Clive.
The court said that “there was uncontroverted evidence of continued problems after the written evaluation” and that the court was not there “to judge the wisdom of management’s responses,” but rather to determine whether the company had come forward with evidence suggesting that it would have terminated John regardless of his FMLA activities. In this case, the court said that ACME met this burden.
In a more recent case, Janczak v. Tulsa Winch, Inc., 2015 U.S. App LEXIS 13283, (10th Cir. 2015), the court stated that an employer seeking summary judgment on an interference claim is required “to show that termination would certainly have occurred regardless of leave.” Evidence that termination was contemplated prior to FMLA leave is not sufficient to meet this standard, particularly in a situation where there is no evidence that the employee had “ever violated company policy, was deficient in his duties, or was insubordinate.”
Cases where summary judgment for employer was granted include where the employee did not follow a direct and legitimate order from a supervisor, where there was overwhelming evidence of performance issues predating the leave, and repeated incidents of noncompliance with an attendance policy.
2. Can John rely on the former manager’s statement that John was “safe” as evidence that the decision by Clive to terminate his employment was related to his leave?
John said that he was told by his former manager just months before he was terminated that he was “safe.” This occurred after the complaint by his coworkers and concerns were raised about certain project work. This may have been relevant if the former manager had remained with the company in the management position.
In this case, however, Clive was appointed to the manager position. The court noted that differences in the evaluation of an employee’s performance do not establish pretext as “different supervisors may impose different standards of behavior, and a new supervisor may decide to enforce policies” that a previous supervisor did not enforce.
3. Shouldn’t the employer have given John additional formal feedback or discipline? The record shows he only had one performance review.
John had one formal performance review with mixed ratings and an overall performance rating of meets expectations. He was not placed on a performance improvement plan with regard to the two areas where he was rated marginal. He did receive counseling regarding two additional incidents while his former manager was still with the company, but he did not receive any formal discipline. In addition, Clive did not sit down with John to review his performance or give him formal discipline.
This is a close call. The company followed its standard performance review process and while John received positive feedback, significant areas of concern were identified and these were the same areas where John had additional performance issues including interactions with customers and failure to timely complete project work.
In Brown v. Scriptpro, the court said that “there is no requirement that employees receive any particular amount of written feedback.” It is important to note, however, that it is the employer’s burden to establish that the employee would have been terminated even if he had not been on FMLA leave. Close management of the poor performance including progressive discipline would have made this an even stronger case.