Employment Law News: Termination While on FMLA Leave Goes Awry
By Anne-Marie L. Storey, Esq.
Another FMLA case has recently been issued that just goes to show that an employer can never have too much training. In addition to the FMLA, this case has very interesting issues involving a reduction in force and the contention by the employer that prior disciplinary action received by this employee justified her RIF as compared to her co-workers. The decision in this case was issued in response to the employer’s attempt at summary judgment.
The employee, Drew, worked for this employer for fifteen years, most recently as a phlebotomy supervisor. The employer lost a large client and subsequently implemented a reduction-in-force. The employee was one of those eliminated; this occurred while she was on an FMLA leave for a hysterectomy, during which time she also discovered that her domestic partner had cancer. The employer defended its choice to eliminate her position based on the fact that she was one of twenty-one other employees who were let go, and that she had disciplinary action that formed an objective basis to include her in the RIF (but, the disciplinary action all occurred within a short time of the FMLA leave; according to the facts, the employee had not had other disciplinary action within the prior fourteen years).
The employee’s response was that she was targeted for discipline so her file could be “papered”. In addition, she alleged the following things happened after her request for leave: her supervisor told her she should borrow a book called No More Hysterectomies (which she alleged showed a bias by the supervisor); that she received warnings for behavior other employees engaged in as well but that they did not receive similar warnings; that she was told when being informed of her termination that it might be a “blessing in disguise” because she would have more time to take care of her partner and that “she would not be able to give 100% to her job anyway.” If I were a fan of emoticons, I would include a few here.
The employee filed suit claiming FMLA retaliation, among other things. The Court found that she had established a sufficient basis to move that claim to a jury. This was based, in part, on the fact that she was terminated during her leave, the comments by her supervisor, and questions about the legitimacy of the disciplinary action leading to her inclusion in the RIF.
Although it is hard to believe that comments such as this supervisor made are still occurring, this case presents broader issues that employers subject to the FMLA need to be sure to understand. One of the most important is how and when to implement disciplinary action and/or termination for an employee who is already on or has expressed a need for FMLA leave. As you can see from this case, those timing issues can drastically impact the outcome of a retaliation or interference claim.
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