Pretext Found in Use of Sales Figures from FMLA Leave Period to Support Firing Employee

April 23, 2018

A bank’s reasons for terminating an employee three months after he returned from Family and Medical Leave Act (FMLA) leave for a work-related injury could be evidence of pretext, a federal district court in New York found, denying the bank's request to dismiss the employee’s FMLA claims.

Although the bank contended it fired him for a well-documented history of performance problems, including bad numbers and a lack of leadership, the court found the bank’s use of his sales numbers for the period in which he had been on leave could well establish pretext.

A branch manager at one of the employer’s bank branches since July 2012, the employee was involved in a car accident on June 12, 2014, suffered injuries, took workers compensation, and was granted FMLA leave the next day. He returned to work on July 30, 2014, but was terminated on October 29, 2014.

Retaliation. The employee relied on the temporal proximity between his leave and his termination, which was three months, as well as the statements and actions of his former supervisor, including that he: (1) lied about the reasons for his termination; (2) discussed demoting him while he was on leave; (3) offered his position to someone else while he was on leave; and (4) questioned whether he was "actually injured" and made other derogatory comments.

The employee also argued that the employer’s use of sales figures during the time he was on leave as grounds for termination constitutes direct evidence both of retaliation and pretext. While the court disagreed with the employee that consideration of figures during time periods when an employee is on leave necessarily means that the leave was a "negative factor," in this case the record was sufficient to make that determination. A reasonable juror could conclude that the leave played a role in the termination, under these facts, the court held.