FMLA Claim of Employee Fired While on Leave Survives Motion to Dismiss

​A worker, fired while on leave under the Family and Medical Leave Act (FMLA) after his supervisor told him to apply for an employee assistance program based on his medical conditions, can proceed with his lawsuit. He sufficiently pleaded that his right to reinstatement was still intact when he began FMLA leave, a federal appellate court ruled.

The plaintiff, who has epilepsy and glaucoma, worked for his employer for 20 years as an engineer until December 2018.

He began reporting to a new supervisor, who was aware of his medical history, in March 2017. The plaintiff received his first-ever poor performance review in June 2018. This was followed by a final warning related to a part that broke during a testing procedure in October 2018. The plaintiff was so angered by the final warning that he had to be escorted off work premises. The supervisor instructed the plaintiff to apply for an employee assistance program based on his medical conditions.

The plaintiff applied for and was granted short-term disability coverage related to his epilepsy and glaucoma. He also was granted leave under the FMLA based on those same medical conditions.

A human resource professional fired the plaintiff by phone Dec. 6, 2018, while he was on FMLA leave, citing his "poor mid-year performance review from June 2018" and stating that "it was a good time" for the employee to separate from the company. The plaintiff still had 5.4 weeks of FMLA leave remaining for 2018 and was entitled to an additional 12 weeks of FMLA leave in 2019 to care for his own medical needs and those of his wife, who had advanced cancer.

The plaintiff filed suit alleging two FMLA claims against his employer: discriminatory termination during his FMLA leave and interference with his right to reinstatement to his position at the end of the leave. The employer's motion to dismiss was granted by the district court, which found the plaintiff had pleaded nothing beyond "mere timing" to suggest that the employer impermissibly terminated him. The court also noted alleged rationales for the termination decision that were unrelated to the exercise of the plaintiff's FMLA rights, including a poor performance review, a workplace protest of a final warning, and ejection from work premises.

On appeal, the 5th U.S. Circuit Court of Appeals examined whether the plaintiff had adequately alleged causation between the termination decision and his FMLA leave request.

The appeals court noted that while a plaintiff does not have to show that the protected activity was the only cause of termination, the plaintiff is required to show that the protected activity and the adverse employment action are not completely unrelated.

In this case, the plaintiff sufficiently alleged a causal link between his termination and request for FMLA leave, the court found, as he was terminated in the middle of his FMLA leave. Further, the fact that his employer did not fire him at the time of his pre-leave workplace performance issues in June and October 2018, but instead waited until December 2018 to do so—two months into his FMLA leave—indicates that the termination decision was not completely unrelated to the exercise of the plaintiff's FMLA rights. The court reversed the district court's dismissal of the discrimination claim and sent it back to the district court for further proceedings.

Turning to the reinstatement interference claim, the court noted an employee is entitled only to those rights to which he or she would have been entitled had the employee not taken FMLA leave. "Thus, although denying an employee the reinstatement to which he is entitled generally violates the FMLA, denying reinstatement to an employee whose right to restored employment had already been extinguished—for legitimate reasons unrelated to his efforts to secure FMLA leave—does not violate the [FMLA]," the court explained.

The appeals court found the plaintiff adequately pleaded an interference claim by alleging his employer denied him a benefit to which he was entitled under the FMLA: reinstatement to his position upon the termination of his FMLA leave.

Although the employer argued the plaintiff's own allegations show he would have been fired even if he had not taken FMLA leave and so was not entitled to reinstatement, the appeals court disagreed. The court noted the plaintiff did not allege that he was fired at the time of his poor performance review in June nor that he was fired at the time of his final warning in October.

"Instead, [the plaintiff] clearly alleges that [his employer] first notified him of his termination in December 2018—approximately two months after his FMLA leave commenced and while he still had several weeks of leave remaining," the 5th Circuit stated.

Further, the allegation that the employer directed the plaintiff "to an employee assistance program and guided him through the FMLA application process—rather than simply firing him outright on the basis of poor workplace performance—indicates that his right to restored employment was still intact when he secured FMLA leave," according to the appeals court.

The district court's dismissal of the interference claim was reversed, and the claim was allowed to proceed.

Hester v. Bell-Textron Inc., 5th Cir., No. 20-11140 (Aug. 23, 2021).

Professional Pointer: When an employer believes there are grounds to fire an employee for poor performance, it should do so at the time the performance issues emerge. Delaying termination for six months after the performance issues surfaced and terminating employment while a worker is on FMLA leave will likely raise issues of timing and pretext.

Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.