Employee Fails to Prove Termination Was Pretextual

The 10th U.S. Circuit Court of Appeals upheld a lower court's dismissal of an employee's claims under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act, providing a number of steps an employer can take to support termination.

An employee was fired shortly after returning from FMLA leave. She then sued her former employer for retaliation and discrimination. The lower court granted summary judgment for the employer because the employee failed to demonstrate that the reason for her termination was a pretext. The 10th Circuit upheld that decision.

The employee, who had anxiety and depression, worked for the employer from 2013 to 2018. During her employment, the individual experienced anxiety but refused both her employer's offers to help and suggestions from the employer and medical providers that she take a medical leave.

In 2018, the employee's performance deteriorated, and her supervisor scheduled a meeting with her to discuss the performance issues. Just prior to that meeting, the employee was hospitalized for chest pain. At that point, the employee requested a two-week FMLA leave, and the request was granted. When the employee returned from that leave, the postponed meeting was held and the employee was placed on a period of probation that included specific conditions, one of which was to refrain from using the Internet for personal reasons while at work. The employee continued to use the Internet for personal reasons while at work, and she was fired.

The employee's claims were based on three specific issues: (1) that certain statements from her supervisor were retaliatory, (2) that others used the Internet at work and weren't fired, and (3) that the employer's reasons for her termination changed over time. The 10th Circuit reviewed each of these possible issues and found that the employer provided sufficient support to show that the reasons for its actions were not pretextual.

Effective Documentation

The employee's claims about retaliatory statements were based largely on an e-mail sent by her supervisor to a psychologist who had entered into a contract to provide resiliency training to the employer's staff. The message was sent after the employee attempted to use the consultant to obtain medical paperwork for her FMLA leave. According to the employee, the e-mail indicated a retaliatory mindset and a belief that the employee was "faking her disability." She based that claim largely on the fact that the supervisor put the words "chest pain" in quotes, as if the fact was untrue.

In reviewing this claim, the court noted that the employer had documented prior performance issues, suggestions to the employee to seek assistance and efforts to resolve work-related problems. Based on that documentation, the court rejected the employee's interpretation of the e-mail, stating that "the broader context shows that [the employer] was frustrated with the way that [the employee] sought FMLA leave, not with the fact that she used leave."

Clearly Worded Company Policy

The court also rejected the employee's claim of disparate treatment. While the employee pointed to the employer's Electronic Media Usage Policy, which permitted incidental appropriate use of the Internet, the employer was able to show that the wording of the policy also makes it clear that "personal use of the Internet is a 'privilege' that may be revoked 'at the discretion of the [employer].' "

Because the employee's probation specifically included a limitation on her personal Internet use at work, and because of the inclusion of that exception in the policy, the employee's argument on this point failed.

Clear and Concise Reason for Action Taken

When contradictions or inconsistencies in an employer's rationale for firing an employee occur dishonestly or in bad faith, it can indicate a pretext for discrimination.

In this case, at the termination meeting, the employer stated that the firing was based on the employee's continued personal Internet use at work. At a subsequent deposition, the supervisor testified that the employee was fired for "using her computer for personal use," "not working," and "retaliating against her co-workers." Based on that, the employee argued that reasons were being added, which indicated that the original reason was pretextual.

The court disagreed and found that all of the reasons were related: The employee was not working because she was on the Internet for personal reasons, and she retaliated against co-workers who reported that use. Because the employer never abandoned the original reason for termination, the court found that the employee could not prove pretext. Therefore, the employer's motion for summary judgment and case dismissal should be upheld.

Litzsinger v. Adams County Coroner's Office, 10th Cir., No. 21-1106 (Feb. 15, 2022).

Maria Greco Danaher is an attorney with Ogletree Deakins in Pittsburgh.