Professional Service Agreement

Previous Inaction On Performance Issues, Positive Reviews, Cast Doubt On Motivation for Post-FMLA Firing

March 26, 2018

Though an employer argued that certain events during an employee’s Family and Medical Leave Act (FMLA) leave were the "final" straw that led to her being terminated following her return from a six-week FMLA leave, triable issues prevented a federal court in Wisconsin from dismissing her claims of FMLA interference and retaliation.

The employer would have to explain to a jury why, after years of inaction and solid reviews, it suddenly chose to act on alleged, longstanding concerns about her performance only a few days after she returned from leave.

The employee worked as a children’s services manager in a county’s department of human services (DHS). She was hired on March 2012, after DHS split the job of "professional services manager" into two separate new positions. The individual who had served in that initial role became her counterpart as the behavioral health and clinical services manager.

Relationship with counterpart. The employee and her counterpart had a strained relationship, and he complained early on to their supervisor about her poor leadership and communication skills. Her supervisor then consulted with members of her staff, who provided mixed feedback. At some point, the supervisor counseled her about the need to contain her own emotions and to serve as a better example to her staff.

Early positive reviews. Nevertheless, she received positive performance reviews during her first two years on the job. She was rated as "very good" or "exceptional" in all categories, except in her second review she received a "satisfactory" rating for communication. The comments in these evaluations were also positive and optimistic, but identified some areas for improvement.

Corrective Action Plan. During 2014, her supervisor received additional complaints relating to her leadership skills and she also failed to submit a grant application, resulting in the loss of a source of funding. As a result, in early December she was placed on a six-month Corrective Action Plan (CAP) which identified nine areas for improvement. Though she was later formally removed from the plan after she received a fairly positive review, her supervisor purportedly continued to hold private concerns about her performance and met with the county’s attorney regarding his concerns and desire to replace her.

FMLA leave and termination. Meanwhile, the employee was granted her request to take six weeks of FMLA leave to undergo total knee replacement surgery, from December 21, 2015 to February 1, 2016. On January 22, while she was still on leave, the county discovered that a child it serviced had lost Social Security disability payments and eligibility, purportedly due to the employee’s error. Around the same time, two senior staff members complained about the low morale caused by her lack of leadership and threatened to quit if the conditions continued.

Her supervisor again met with the county’s attorney and the two agreed that she should be replaced after she returned from leave. Four days after she returned on an intermittent-FMLA basis, she was given the choice to either resign or be terminated.

Appropriate parties. At the outset, the court tossed her FMLA claims against the supervisor since he had only been sued in his official capacity. Her claims against DHS were also dismissed since it was merely a division of the county. Moreover, since she didn’t dispute that their inclusion was unnecessary and inappropriate, any objection to their dismissal was waived.

Timing and prior inaction. However, the county would face a jury on her FMLA interference claim since triable issues existed as to whether she was denied her FMLA right to reinstatement. While the county maintained that the termination decision was unrelated to her leave, a reasonable jury could infer that her taking FMLA leave and continuing to take intermittent leave was a factor. In particular, the close temporal proximity could justify an inference of causation.

Moreover, though the county produced evidence of deficiencies that might have prompted it to decide to fire her regardless of her FMLA leave, she remained employed in the same position for nearly four years despite its purported awareness of these same types of issues. And while it could argue that the final straw was a closer-in-time event, such as the staff members’ ultimatum, a jury could find that the proximity of her FMLA leave to her termination, considering her employment history, was more instructive. The county’s previous inaction could also lead to an inference that the county attributed her unit’s problems to institutional deficiencies and overwork, rather than to her performance, particularly in light of her positive reviews.

Thus, the county would have to explain to a jury why, after years of inaction and solid reviews, it suddenly chose to act on longstanding concerns about her performance only a few days after she returned from FMLA leave. While the jury might credit its assertion that its termination decision was performance-based and the closeness to her FMLA leave was coincidental, it could also find that the temporal proximity and employment history created an inference of FMLA interference.

Retaliatory motive. The evidence could also lead a jury to reasonably conclude that a retaliatory motive was present and that the county’s explanation was pretextual. While her reviews may have been an attempt to maintain morale or due to one of the county’s other "benign explanations," resolving this issue required credibility determinations. For example, a jury might reasonably choose to discount the early performance concerns that led to her CAP, given the length of time that elapsed between those concerns and her termination, or it could reasonably choose to credit those concerns, especially after being reinforced while she was on leave.