family leaveMy last post talked about Diamond v. Hospice of Florida Keys and what the Eleventh Circuit said about FMLA interference claims. As promised, this post will look at the Diamond decision’s take on the FMLA retaliation front.

Refresher on Ms. Diamond’s Case

Recall that Jill Diamond, a social worker for Hospice of Florida Keys, was approved to take intermittent FMLA leave to care for her sick parents. She took some days here and there (hence the term “intermittent”) but then took about 10 days in March and April of 2014. Although Hospice approved her leave, it asked her for receipts to prove she was where she said she was, warned her that her high use of PTO could have an impact on her employment, and gave her a detailed explanation of how her leave was compromising the quality of care. Diamond asked the company to not request documentation beyond what the FMLA allowed and for examples of the compromised patient care her leave was causing. Five days after Hospice provided this explanation (about two weeks after her last leave), Hospice terminated Diamond for poor job performance.

Although the district court granted summary judgment to Hospice on both the FMLA interference and FMLA retaliation claims, the Eleventh Circuit reversed.

Retaliation Claims in the Eleventh Circuit

The Eleventh Circuit explained that to prove an FMLA retaliation claim, a plaintiff must show that her employer intentionally discriminated against her for exercising an FMLA right—and this can be proven with either direct or circumstantial evidence. Under the circumstantial standard, a plaintiff must prove that she suffered an adverse employment decision that was causally related to her exercise of her FMLA rights. Under the familiar McDonnell Douglas standard, the plaintiff must establish a prima facie case of retaliation and then present evidence that the employer’s articulated reasons for the termination were a pretext and the real reason was retaliation.

The Court concluded that Diamond established a prima facie case of retaliation. Diamond’s termination was only two weeks after her last day of leave, which established a close temporal proximity. Additionally, the company’s behavior (e.g., negative comments about the effect of Diamond’s absences on the quality of patient care) reinforced the causal connection between the FMLA leave and her termination.

The company offered a legitimate, non-retaliatory reason for the termination decision—Diamond had “disregard[ed] a direct order from her supervisor . . . and violat[ed] Survey guidelines by leaving the premises during a State Survey without notifying the Clinical Director.” Sounds pretty good. The next question was whether Diamond could present sufficient evidence that the reasons were not true or otherwise a pretext and the real reason was retaliation.

The Court found that Diamond presented sufficient evidence of pretext to survive summary judgment. First, the two reasons (i.e., disregarding the order, leaving the premises) were not even included in the “offenses” listed in Diamond’s termination memo. Second, Diamond had never been disciplined for any of the issues listed in the memo. Third, the HR manager testified that Diamond was terminated for poor performance rather than the two offered reasons. Fourth, the company conceded that the two offered reasons, standing alone, would not support the termination—but were considered in conjunction with her poor job performance. Finally, Diamond offered the evidence of the company’s comments about how her FMLA leave was impacting patient care, which potentially connected her leave to any performance deficiencies.

So What Have We Learned?

As we all know, employees who take FMLA are in a protected classification. While you have to manage the employee’s job performance—even during intermittent leave periods—make sure you focus on the performance and clearly separate it from the leave.

Some lessons from the Diamond decision:

  • If there is a performance problem, be sure to focus on performance while the employee is at work—not what they are not accomplishing because of the leave. In this instance it appears that Hospice tried to do that—focusing on Diamond’s patient care issues, insubordination, etc.—but the court felt that the temporal proximity (two weeks) and the negative comments created a genuine issue of fact for a jury.
  • Think long and hard before you terminate an employee without some intermediate steps. If you find that the employee is stealing and you always fire thieves, fire away. If, however, you find that the employee’s job performance is not great, you may need to issue a warning or two before you terminate. Although the employee could claim that the discipline was retaliatory, it is easier to defend a disciplinary decision.
  • Put some distance between the leave and any ultimate employment action. Firing someone on the heels of leave (or any protected activity) is dangerous. Address the behavior but take a measured approach. Not only will that give the employee a chance to improve (which could happen), it will put some time between the leave and the adverse action. This is more difficult with intermittent leave—because when does the leave actually end? However, it will always play better before the court to show that you disciplined for consistent behavior or performance problems—not all of which occurred during or on the heels of leave.

If someone’s FMLA leave is “contentious”—maybe it was challenging, caused some operational problems, etc.—look closely before taking a subsequent adverse employment action. Those actions almost always end up costing more than expected.