Employee’s Poor Performance Defeats FMLA Claims

Takeaway: When an employer can show a consistent critique of performance issues unrelated to leave and which predate use of such leave, the employer will be in a stronger position to defend against an FMLA retaliation claim. 

An employer did not interfere with an employee’s Family and Medical Leave Act (FMLA) rights or retaliate against an employee for taking leave to care for two family members when the employer fired the employee for poor performance, the 2nd U.S. Circuit Court of Appeals ruled.

Toolkit: Everything You Need to Know About Employee Termination

The plaintiff worked as a senior account manager for an international telecommunications company. The plaintiff was initially responsible for managing “B-end” accounts (headquartered outside of the United States). In January 2020, the plaintiff’s job responsibilities expanded to managing “A-end” accounts (headquartered in the United States).

In the plaintiff’s performance review for the first half of 2020, her supervisor noted that the plaintiff was experiencing challenges in her new territory, including issues with her projected revenue from her A-end accounts and miscommunications with her team and a client. However, her supervisor anticipated her performance in the second half of 2020 would meet performance objectives.

In October 2020, the plaintiff asked for time off because her daughter might need surgery. Her supervisor encouraged her to take the time she needed. The plaintiff took seven and a half days off over the next three months to care for her daughter. At no point did the plaintiff or her supervisor discuss the FMLA. The days off were not designated as FMLA leave.

Around that same time, the supervisor increased his check-ins on the status of assignments and deals, focusing on the plaintiff’s management of the Pfizer account, one of the company’s largest A-end accounts. Negotiations on a master services agreement with Pfizer stalled due to an impasse on contract terms, and the plaintiff’s supervisor repeatedly asked whether the plaintiff would be able to maintain the pace of conversations needed with the client. A co-worker also told the plaintiff that the supervisor was going to transfer the Pfizer account away from the plaintiff if she was unable to participate in upcoming client conversations. The plaintiff later claimed she felt pressure not to take additional leave due to this feedback.

By the end of 2020, the plaintiff met her objectives for the B-end accounts, but three of the company’s A-end accounts, including Pfizer, stopped using the company’s products. Notably, Pfizer ended the relationship due to a dispute over contract terms that were arguably outside of the plaintiff’s control.

The plaintiff received a rating of “improvement needed” for the second half of 2020. Her supervisor noted challenges similar to those previously identified, and that she had a “lack of focus.” The plaintiff felt this was a reference to her absences due to her daughter’s illness, but her supervisor explained that he meant the plaintiff should have been more focused on building relationships with Pfizer to overcome the legal impasse that resulted in losing this account.

On Feb. 12, 2021, the plaintiff took one day off to take her mother to a doctor’s appointment. The FMLA was not discussed, and she took the day off with pay without any issue.

On Feb. 24, 2021, the company terminated the plaintiff’s employment because she was not expected to meet her 2021 quota.

The plaintiff sued her employer for FMLA interference and retaliation, and related claims under the New York City Human Rights Law (NYCHRL). The district court granted summary judgment in favor of the employer on the FMLA claims and declined to assert supplemental jurisdiction over the NYCHRL claims. The plaintiff appealed the district court’s decision.

Toolkit: What You Need to Know About the FMLA

The plaintiff alleged that the company interfered with her FMLA rights because she was discouraged from taking FMLA leave, citing her supervisor’s check-ins on deal status, focus on her communications with Pfizer, and reference to her “lack of focus.” 

The 2nd Circuit noted that the plaintiff’s supervisor approved all time off the plaintiff requested, encouraged her to take time to care for her daughter, and never spoke negatively about her taking time off. The 2nd Circuit agreed with the district court that the absence of any allegation that the company referred to her leave was “fatal” to her discouragement theory. 

The appeals court reasoned that an employer’s critique of an employee’s substandard performance unrelated to FMLA leave does not support a claim for interference, even when an employee subjectively felt pressure due to the criticism and decides to take less leave than she otherwise would have. 

The 2nd Circuit also rejected the plaintiff’s claim that the company’s failure to comply with the FMLA’s notice requirements interfered with her FMLA rights, focusing on the lack of harm to the plaintiff. The plaintiff did not dispute that she was aware of her FMLA rights, she received a notice of her rights when she was hired, and she did not argue that she would not have felt pressure or shied away from taking more days off if she had been specifically informed of her FMLA eligibility. The 2nd Circuit noted that she took the time off she requested “without obstruction.”

The appeals court rejected the plaintiff’s FMLA retaliation claim, finding that even if she established a “prima facie” case under the McDonnell-Douglas burden-shifting framework, the plaintiff failed to provide evidence that the company’s legitimate, nondiscriminatory reason for terminating her employment was pretextual. The 2nd Circuit dismissed the plaintiff’s suggestion that retaliation could be inferred based on her supervisor’s criticisms of the plaintiff’s performance and lack of focus. The plaintiff’s “mere disagreement” with her supervisor’s assessment was insufficient to create an issue of fact regarding pretext. 

The court also found that the temporal proximity of her last day of leave and her termination did not create a triable issue regarding pretext. The bulk of her leave was taken several months earlier, her supervisor first raised performance issues several months prior to her taking any leave, and her supervisor’s reason to terminate employment was consistent with the concerns raised prior to the employee’s leave use. 

Based on these findings, the 2nd Circuit found no evidence that the employer’s basis for terminating her employment was pretextual and affirmed summary judgment in favor of the employer.

The 2nd Circuit also declined to assert supplemental jurisdiction over the plaintiff’s related claims under the NYCHRL, leaving such claims to be pursued in state court.

Haran v. Orange Business Services Inc., 2nd Cir., No. 24-2312 (Nov. 25, 2025).

Linda B. Hollinshead is an attorney with Duane Morris in Philadelphia.