Employee Wasn’t Fired for Using FMLA Intermittent Leave


By Joanne Deschenaux, J.D. May 16, 2018

​A worker's Family and Medical Leave Act (FMLA) retaliation claims were dismissed before trial by a Kentucky federal court. The evidence clearly showed that the employee, who suffered from irritable bowel syndrome (IBS), was demoted and later fired because of documented poor job performance, not because she took intermittent leave under the FMLA, the court said.

From March 30, 2009, until Dec. 8, 2015, the plaintiff worked for the Rawlings Co., a business that provides insurance claims recovery services for health insurance companies. The plaintiff worked in various roles, including as an auditor and audit team manager (ATM).

As an ATM, the plaintiff audited claims and supervised the performance of 10 to 15 auditors. While she was an ATM, the plaintiff was diagnosed with IBS, a digestive disease that caused her to experience severe stomach cramping and sudden diarrhea. The IBS episodes usually happened in the early mornings and late afternoons.

In 2013, the plaintiff requested leave under the FMLA. She was placed on intermittent leave, which allowed her to arrive at work late and leave early if needed.

While on intermittent FMLA leave, the plaintiff received several notifications that her team was underperforming. Team members were often tardy and took excessive breaks. The company's director of operations told the plaintiff to come up with a plan to improve her team's performance.

[SHRM members-only toolkit: Managing Family and Medical Leave]

The director of operations then discovered that the plaintiff herself was often absent from her desk and smoking cigarettes on the loading dock instead of working.

In August 2014, the plaintiff was demoted to the auditor position. She was told that her excessive break-taking did not exemplify "model leadership." The plaintiff did not deny that she had been taking excessive breaks or suggest that the breaks she took were related to her IBS.

In December 2014, the plaintiff's supervisor gave her a written warning indicating that over the course of about one month, she had been tardy nine times and left work early five different times. At least five of the instances when she was tardy and four when she left early were unrelated to her IBS.

The company's 2015 performance chart showed that the plaintiff failed to meet her job expectations in every month except March and April.

The plaintiff had 26 full-day absences between July and September 2015—even though her FMLA paperwork did not say anything about full-day absences being necessary. She received a written warning notifying her that her absenteeism was a problem.

On Nov. 19, the plaintiff received an e-mail admonishing her for taking lengthy lunch breaks and 30-minute smoking breaks, as well as for reporting to work two hours late the day before the warning was issued. The plaintiff was two hours late again on Dec. 8, when she was fired for tardiness and excessive breaks.

The plaintiff filed a lawsuit against the company, alleging violations of the FMLA, among other claims. The employer moved for summary judgment, seeking to have the claims dismissed before trial.

FMLA Retaliation

The court found no causal relationship between the plaintiff's use of intermittent leave and her demotion or firing and so granted the company's motion for summary judgment on the plaintiff's FMLA retaliation claims.  

The plaintiff obtained FMLA leave in December 2013 but was not demoted until August 2014, more than eight months later. The company did not fire her until two years after she first sought leave.

In addition, although the plaintiff's supervisor admitted that he had placed the plaintiff under "heightened scrutiny," the evidence showed that this was because of her team's poor performance, not because the plaintiff took FMLA leave.

The employer, the court said, clearly set forth a legitimate, nondiscriminatory reason for demoting the plaintiff and later for terminating her. She was demoted because she failed to curb her team's absenteeism, tardiness and its tendency, like hers, to take excessive breaks. Additionally, she was terminated for her own poor performance. Her smoking breaks violated company policy, and the plaintiff did not deny that she had been taking excessive breaks or suggest that the breaks she took were related to her IBS, the court noted.

Popeck v. Rawlings Co. LLC, W.D. Ky., No. 3:16-cv-00138-GNS-DW (May 3, 2018). 

Professional Pointer: Managing FMLA intermittent leave can present practical problems for employers. But this case shows that, even though an employee may be allowed to be absent to some degree for health reasons, that guarantee does not allow the employee to take long breaks or incur excessive absences unrelated to the medical condition at issue.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 


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