Case: Employer prevails because it took certain steps to avoid retaliation


Other managers reviewed supervisor’s termination decision

The FMLA prohibits retaliation because an employee exercises FMLA rights. This prohibition applies when an employer accepts a termination recommendation for taking FMLA leave from an employee's immediate supervisor. One court recently determined that the prohibition doesn't apply when the employee obtains consideration by independent decisionmakers.

Case in point

Part of Jeannie's job was to take calls from customers. She took FMLA leave for her own condition and that of her father's. About five months after approving the leave, her supervisor suspected that Jeannie was avoiding customer calls by telling then that she would get additional information, putting them on hold, and chatting with coworkers about personal matters while the customers waited.

As a result of this suspicion, a meeting was held regarding her job performance, and she was suspended while further investigation took place. During the investigation, the supervisor ultimately recommended that Jeannie be terminated.

The employer had a policy prohibiting supervisors from firing employees. Instead, a manager was selected to conduct a meeting for all parties to present arguments and evidence. In this case, after considering the arguments and evidence, the chosen manager agreed to the termination based on job performance.

In court (yes, Jeannie sued), the employer presented a legitimate reason for the termination – job performance. Jeannie tried to rely on the cat's pay theory — that her supervisor's bias based on her FMLA leave influenced the manager's decision to fire.

The court disagreed with Jeannie, pointing out that the causal chain was broken because the employer directed other managers to independently investigate and decide whether to accept the supervisor's termination recommendation. The cat's paw theory doesn't apply when independent decisionmakers conduct their own investigations without relying on biased subordinates, as this employer did.

Key to remember: Retaliation needs a causal link between an employee's use of FMLA leave and a negative employment action, such as termination. That link is broken when an independent decisionmaker conducts her own investigation and decides to fire the employee. Therefore, employers are best served if they have independent investigations regarding terminations.

Parker v. United Airlines, Inc., 10th Circuit Court of Appeals, No. 21-4093, September 26, 2022.

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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