FMLA Articles

Terminating an employee who take FMLA leave


Key to remember: An employee’s claim of FMLA violations failed because it came only after many instances of poor job performance.

Applies to: All public employers and private employers with 50 or more employees. 

Impact to customers: While employers need to be careful when terminating an employee who took FMLA leave, they are not totally without recourse.

Possible impact to JJK products/services: This is only a news item but could be included in the 262M in the future.

Joyce had worked as Harvey’s assistance for many years, but problems began to surface regarding Joyce’s performance. Harvey expressed repeated concerns in the months that followed. After six months, he began to think it was time for a new assistant. Harvey brought up the issue with the company’s chief operating officer and the company’s HR director. They all began putting together a plan to transition Joyce to another position or to terminate her. The problems persisted.

After learning that Harvey was upset with her, Joyce scheduled an appointment with her doctor. Unknown to Harvey (or anyone else involved), Joyce had been diagnosed with multiple sclerosis years earlier. Joyce asked her doctor if she qualified as disabled, but the doctor he tried to keep patients working, and that Joyce was not disabled. It was only after that appointment that Joyce informed her employer about her diagnosis. She also requested two weeks of FMLA leave.

The leave was approved, but when Joyce returned to work, more confrontations between her and Harvey broke out. The decision was made to give Joyce the opportunity to find another employer. Several weeks later, Joyce complained about the discrimination and retaliation she had suffered. She rejected the company’s decision to terminate her because it was in retaliation for her FMLA leave.

Joyce was terminated and she sued.

The court found that the employer established a legitimate nondiscriminatory reason for terminating Joyce – that being her poor job performance that predated her FMLA leave. The weight of the evidence was so heavily in favor of the employer. Joyce failed to establish that the reason for firing her was false and that retaliation was the real reason for her termination.

The lesson to be learned here is a good one. The employer in this case won because it had plenty of documented evidence of Joyce’s job performance. Some of that evidence was in the form of emails. Without this evidence, the employer could have lost its argument. The fact that Joyce came up with her claims of retaliation only after she took FMLA leave did not help her case. Joyce also did not produce enough evidence to support her claim that the termination reason was false. The company did not make its decision in the heat of the moment but thought the matter through.

Joyce actually tried to use that for her argument, indicating that if the company was really motivated by her performance and not the FMLA leave, then she would have been fired sooner. The evidence showed that Harvey at least contemplated firing Joyce before she took leave. So, even if the decision was only definitively determined after the FMLA leave, that timing is no evidence whatever that the leave was the real reason for the firing. It also allowed Joyce to take her requested leave. Thus, the employer won the case.

Fry v. Rand Construction Corporation, Fourth Circuit Court of Appeals, No 18-2083, July 1, 2020.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


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