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Mass.: Federal Court Allows FMLA Claim to Go Forward

By Diane Cadrain  3/12/2014
An employee who may not have been a star performer was nevertheless terminated under circumstances that suggested that he was being fired for using Family and Medical Leave Act (FMLA) leave, not because of his poor performance, a federal court in Massachusetts ruled.

Starbucks hired Robert McAleer to be manager of its Elliott Street store in Beverly, Massachusetts. At the time he started work, in February 2011, the store had already been falling short of some of its corporate performance metrics--cleanliness, customer service, and employee development, for example. In August of that year, a new district manager, Christina Lane, took over. The Elliott Street Store was still underperforming at that time, and when Lane gave McAleer his performance evaluation for the fiscal year ending September 2011, she noted that the Elliott Street Store was failing in six out of the eight essential performance metrics.

In late 2011, McAleer's wife was diagnosed with cancer and scheduled to undergo surgery in early 2012. In January of 2012, McAleer told Lane that he would require time off to care for his wife following the surgery. He took vacation days for that purpose from Feb. 21, 2012, through Feb. 26, 2012. He also applied for FMLA leave, which was formally approved by Starbucks to begin on April 9, 2012.

Meanwhile, in February of 2012, Lane identified a number of continuing problems with the Elliott street store, and on March 21, 2012, she told McAleer that he would be placed under a performance improvement plan (PIP). On April 8, 2012, the day before McAleer began his FMLA leave, Lane emailed him a copy of the PIP, which required progress reviews at 30, 60, and 90-day intervals. While McAleer was on FMLA leave, Lane substituted for him at the Elliott Street Store.

At the first 30-day PIP review, Lane registered dissatisfaction with McAleer's performance. At the second progress review on July 2, 2012, Lane repeated her criticisms and noted the specific areas in which McAleer's performance was deficient. On July 27, 2012, the Elliott Street Store again failed a quality assurance audit for cleanliness, after having already failed the same audit a number of times. Between July 2, 2012 and August 6, 2012, Lane recorded complaints from McAleer's Starbucks employees about his management skills.

On Aug. 6, 2012, following the 90-day review, Lane noted some improvements in McAleer's performance, but faulted him in other respects. On Aug. 16, 2012, Starbucks was served with this lawsuit. On Aug. 17, 2012, Starbucks notified McAleer that he was terminated.

McAleer sued Starbucks for retaliating against him for exercising his rights under the Family and Medical Leave Act. Starbucks asked the court to dismiss the case at an early stage in the proceedings.

The court noted that in order to make out aw viable claim of retaliation under the FMLA, McAleer had to come forward with evidence showing that: (1) he availed himself of a protected right under the FMLA; (2) he suffered an adverse employment action; and (3) there was a causal connection between the protected conduct and the adverse employment action. If he were to make a successful showing, the burden would then shift to Starbucks to articulate a legitimate reason for his termination. If Starbucks made that showing successfully, then McAleer would have to show that Starbucks’ proffered reason was a pretext for retaliation.

Applying those criteria to the evidence, the court noted that there was no real dispute that McAleer invoked his rights under the FMLA and suffered an adverse employment action. Similarly, the court said, Starbucks satisfied its burden of production by articulating a reason—McAleer’s poor performance under the PIP—to justify the termination.

The dispute, the court said, was whether there was a causal connection McAleer's request for FMLA leave and his lawsuit and Starbucks's decision to fire him.

On this point, McAleer argued (1) that Lane informed McAleer of her intent to impose the PIP on March 21, 2012, less than a month after McAleer told her that he might need additional time off; (2) Lane emailed McAleer a copy of the PIP the night before he began his FMLA leave; (3) Lane imposed the PIP the week after McAleer returned to work (and after Lane had to cover at the store in his absence); and (4) McAleer was terminated on August 16, 2012, literally the day after Starbucks was served with his lawsuit. The court noted the close temporal proximity between these events, and stated that while they may not necessarily be dispositive, they "may give rise to an inference of causal connection."

McAleer had been able to show that two other similarly situated managers in Lane's district who did not take the FMLA leave and who compiled the same dismal metrics as he did were not placed on a PIP. Moreover, the court noted, there was believable evidence that during the relevant time period  nine or more of the 13 stores in Lane's district were performing as poorly as McAleer's, while none of the other managers were given PIPs (much less a termination notice).

“It is open to a jury,” the court said, “to find that Lane was irritated by McAleer's leave requests, resented having to fill in for him during his absences, and imposed a PIP with conditions that were designed to ensure McAleer's failure, in retaliation for his exercise of his FMLA rights.

In FY 2011, the court noted, nine of Lane's 13 stores were underperforming in "overall customer satisfaction," and "taste of beverage;" three stores were underperforming in "new hire success rate." In 2012, 10 out of Lane's 13 stores were underperforming in "overall customer satisfaction;" five stores were underperforming in "taste of beverage;" and four stores were underperforming in "new hire success rate." Starbucks' response that McAleer was "categorically deficient" in multiple performance areas, while the other managers were only episodically so, is a matter for the jury.

For those reasons, the court declined to dismiss the case and ordered that the dispute about the causal connection should go to the jury.

McAleer v. Starbucks Corporation, D. Mass., Civil Action No. 12-11631-RGS (Jan. 31, 2014).

Diane Cadrain is an attorney who has been writing about employment law issues for more than 20 years.

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