Court: Employee termination upheld


Policy violations, not FMLA leave the reason

Due to the nature of the work in a coroner’s office, many employees suffered from mental health problems, so an outside firm was hired to provide resiliency training. Lisa, an employee with anxiety and panic attacks took advantage of the training and even talked to one of the firm’s psychologists.

Lisa, who also had a poor performance history, was encouraged to take medical leave but said she did not want to for fear of being seen as a problem if she took time off for a mental condition.

At one point, Lisa was called to perform a task, but instead, she called her supervisor, Cory, and told him that she could not do it. When asked why, Lisa said she was burned out, and that someone from the resiliency firm would call Cory to explain.

Soon thereafter, Cory told Lisa that they would meet to discuss the task and Lisa’s overall performance. Before the meeting took place, Lisa suffered chest pain and was taken to the emergency room. The chest pain was likely a manifestation of her anxiety and depression. Lisa finally took FMLA leave.

While talking to the resiliency firm to discuss the situation, given Lisa’s comment, they agreed that Lisa should not have gone through the firm, but through her own doctor. Cory indicated to the firm that “It is obviously highly suspect that this employee was going to try to abuse this.”

Lisa returned from FMLA leave and met with Cory to discuss her performance issues, including her excessive personal use of the Internet at work, despite being behind. Instead of termination, however, she was put on probation. Within two weeks she was again violating the internet rule and was fired. She sued, claiming that she was terminated for taking FMLA leave, given the short time frame between the leave and the termination.

In court, the employer argued that Lisa was terminated for violations of company policy, not the leave. As evidence of pretext, Lisa pointed to Cory’s expressed frustration and skepticism about her taking FMLA leave. Cory’s comment about Lisa being suspected of abuse referred to the way she took leave by going through the resiliency firm and not her own doctor; not that she took the leave.

The court ruled that the employer gave a legitimate non-discriminatory reason for the termination — policy violation — and that reason was not pretext. The employer won summary judgement.

Takeaway: Make sure the reason for a termination is not related to the taking of FMLA leave and be able to prove it.

Lintzsinger v. Adams County Coroner’s Office, 10th Circuit Court of Appeals, No. 21-1106, February 15, 2022.

Key to remember:  Even if employees take FMLA leave, they may be terminated for other reasons, such as company policy violations.

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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