FMLA Leave Noted As Basis For Low Performance Rating, Sending Retaliation Claim To Jury

February 19, 2018

The fact that a branch manager’s "considerable time off" in 2014 to take Family and Medical Leave Act (FMLA) leave was noted as a factor justifying her lowered performance rating, and her lowered rating in turn was a cited reason for the employer not to consider her for an assistant manager position when her job was eliminated in a restructuring, was enough for a federal district court in Maryland to deny summary judgment on her FMLA retaliation claim.

The branch manager’s age discrimination claim also avoided summary judgment, largely on the strength of evidence suggesting the employer’s performance goals were unrealistic and the employer knew it, as well as emails after she was fired suggesting to the court "a poorly justified decision" and "a post hoc effort to sustain that decision." But her FMLA interference claim failed.

Position elimination. After a former bank branch manager’s position was eliminated in a restructuring that consolidated two branches, the 67-year-old former manager was not even considered for the assistant manager position, which was given to a 35-year-old. The bank claimed poor performance; new ownership had made annual goals more ambitious, but she and at least some of her coworkers asserted that an "anemic customer base," resulting from the growth of online banking and the poor financial position of many in the community, was the reason the bank failed to meet performance goals.

The employee also believed the bank held the FMLA leave she had taken in 2014 against her; the senior VP allegedly spoke of his doubts that her leave was "justified," and her 2014 performance review—used to support the refusal to consider her for the assistant manager position—noted her "considerable amount of time" off as a factor in her lower performance rating. She sued the bank and the senior VP individually for age discrimination and FMLA interference and retaliation.

Age discrimination. Denying summary judgment on the age discrimination claim, the court noted that while the branch manager conceded that she had failed to meet the bank’s expectations, she disputed the legitimacy of those expectations and her resulting performance review. She argued that the bank set unrealistic goals for a branch whose clientele was suffering economically, converting to online banking, and eschewing new loans, and that the senior VP and the regional president "recognized as much" (as did her coworkers). Plus she had evidence that in other years, her branch’s failure to meet performance goals had not affected her performance reviews.

To the court, "this inconsistency casts the Bank’s performance benchmarks as little more than aspirational goals, and, if expectations, ones for which the Bank provided allowances based on the difficulties facing [her] branch." Then there was the fact that her review blamed her poor performance on her FMLA leave, which the court found was directly related to what a reasonable juror might determine were not legitimate expectations, and so the court found she had stated a prima facie case.

Pretext. Because the bank’s decision not to consider the branch manager for the assistant manager position was based on her poor performance review, she had to provide evidence questioning the validity of this explanation. She submitted evidence of a series of e-mails between the senior VP and HR representatives—after she was fired—suggested to the court "a poorly justified decision" and "a post hoc effort to sustain that decision with legitimate justifications." This was enough, combined with the selection of substantial younger candidate, to avoid summary judgment.

FMLA retaliation. The bank argued there was no causal connection between the branch manager’s 2014 FMLA leave and her dismissal without being considered for the assistant branch manager position because the regional president did not know she had taken leave. He testified that he only reviewed her performance review score, not the attached comments, in her 2014 review. That argument did not convince the court, which pointed out that it was undisputed that her negative performance review contributed to the bank’s failure to consider her for the position and that her use of FMLA leave affected her score. The bank’s insistence that the decision to not consider her was motivated by its overall review of her performance necessarily reflected the senior VP’s negative treatment of her use of leave. There was also record evidence suggesting that the senior VP may have told the regional president about her FMLA leave; thus the decision to not consider her for assistant manager may have been either indirectly or directly influenced by her FMLA leave. This was enough, reasoned the court, to suggest both causation and pretext sufficient to avoid summary judgment on her FMLA retaliation claim.

No FMLA interference. But there was not enough evidence to genuinely dispute the bank’s argument that it did not interfere with the branch manager’s FMLA rights in 2015. She alleged she knew that the senior VP had complained to coworkers about her 2014 leave and noted it in her performance review, so when she needed more time off for knee surgery in 2015, she did not immediately reveal why "for fear of professional consequences," although she eventually did tell her supervisors. She claimed she would have taken more leave but for the bank’s interference. But, stressed the court, it didn’t matter whether the branch manager requested FMLA leave in March or April of 2015, or how much she would have requested, because the bank had already decided to eliminate her position. Given that timeline, a reasonable juror could not decide that the bank interfered with her FMLA leave by deciding to fire her because, when it decided to fire her, the employer had no idea she was going to seek FMLA leave in 2015.