Immediate Termination Upon Return from FMLA Leave Suggests Retaliation

By Margaret M. Clark, J.D., SHRM-SCP January 4, 2022
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​Evidence that an employee was asked several times to work during protected leave and was discharged immediately upon his return from leave was sufficient to overcome the employer's motion for summary judgment on interference and retaliation claims under the Family and Medical Leave Act (FMLA), according to a federal trial court in Georgia.

The plaintiff was employed by Elixir Door and Metals Co. as an account manager from April 2018 until his termination in August 2019. In May 2019, his wife and daughters suffered extensive injuries in a car accident. The plaintiff was granted FMLA leave to care for them through Aug. 20, 2019.

On two occasions during the plaintiff's leave, his supervisor allegedly asked the plaintiff to return to work and take leave intermittently. On the first occasion, in May, the supervisor purportedly offered a company laptop so the plaintiff could work at home. The supervisor allegedly said he would take the plaintiff's return into account at bonus time. The plaintiff returned to work on June 2, but resumed leave shortly thereafter.

On the second occasion, in June, the supervisor instructed the plaintiff to come to work to handle a personnel issue. With the supervisor's permission, the plaintiff consulted with HR. He then followed HR's instructions in carrying out discipline that differed from what the supervisor had wanted. On that same June occasion, the supervisor allegedly asked the plaintiff to perform some duties from home on the company laptop. However, the laptop had not yet arrived. When it did arrive on July 2, it was not operable. The supervisor told the plaintiff to return it.

Later in June, the HR manager allegedly asked the plaintiff to return to work to handle another personnel matter. At that time, the plaintiff asked the IT manager to install company software on his personal laptop to enable him to work remotely.

On Aug. 21, 2019, the plaintiff returned to work at the end of his leave. His supervisor terminated his employment that same day. The stated reasons were the plaintiff's inability to manage his employees and asking to have company programs installed on his personal computer without authorization. There was no evidence of dissatisfaction with the plaintiff's performance before his FMLA leave.

While the plaintiff was on leave, he asked the HR manager when he might switch his family onto the company health insurance. When told about the request, the supervisor allegedly said he felt there was something "sneaky" about it. That was never stated to the plaintiff or in any documentation as a reason for his termination.

The FMLA prohibits employers from interfering with the exercise of FMLA rights and from discharging or discriminating against an individual for opposing the employer's FMLA violations. The plaintiff argued that Elixir interfered with his FMLA rights by failing to properly calculate how much time he was out on leave and by repeatedly instructing him to return to work while on leave.

Although the plaintiff failed to show that his leave hours were misrepresented, the facts submitted by the plaintiff demonstrated that the supervisor had instructed him to return to work on multiple occasions and even suggested that his return would be factored into his bonus. That was sufficient to demonstrate interference that arguably denied the plaintiff a benefit to which he was entitled and created a genuine issue of material fact. The court denied Elixir's motion for summary judgement.

As to the retaliation claim, there was no dispute that the plaintiff had engaged in protected activity and suffered an adverse action. Despite Elixir's assertion that there was no evidence of causation, the court said the plaintiff's termination on the same day he returned from FMLA leave was likely sufficient.

Two events of supposed misconduct—inquiring about company insurance for his family and installing company software on his computer—that Elixir relied on to defeat the plaintiff's causation claim also did not hold up. Arguably neither could reasonably be classified as misconduct, the court said, criticizing the company's "shifting reasons" for termination as evidence of pretext. Accordingly, the plaintiff showed enough to allow a reasonable juror to find a violation, and Elixir was not entitled to summary judgment on that ground.

Spivey v. Elixir Door and Metals Co., S.D. Ga., No. CV 519-091 (Oct. 7, 2021).

Professional Pointer: Even if the employer had strong evidence of good cause to terminate the employee immediately upon return from FMLA leave, proximity between the exercise of protected rights and the taking of adverse action raises a red flag of possible retaliation and is often conclusive. If there is a compelling reason why an individual should not be allowed to return to the workforce after exercising protected rights, employers should take careful steps to overcome this strong inference of retaliation. These might include consistent documentation of the reasons for adverse action and evidence that similar action has been taken against the employee for those reasons.

Margaret M. Clark, J.D., SHRM-SCP, is a freelance writer based in Arlington, Va. 

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