Decision to Lay Off Employee Who Was on FMLA Leave Upheld

​An employee on leave covered by the Family and Medical Leave Act (FMLA) is entitled to no more job protection in a reduction in force (RIF) than any other employee, ruled the 8th U.S. Circuit Court of Appeals, affirming a lower court's grant of summary judgment to the employer.

The plaintiff was employed as one of 16 operations supervisors for a midwestern railroad when, in 2016, her employer decided to eliminate six of these positions and consolidate its operations at two of its existing three locations effective April 1, 2016. On Feb. 5, 2016, the plaintiff requested FMLA leave, which her employer approved.

While the plaintiff was out on leave, the employer's HR team met to discuss who should be selected for the RIF. The team reviewed a spreadsheet including information on several objective measures including, for example, three years' worth of performance ratings, efficiency test scores, discipline records, attendance records and current work status. The spreadsheet also included ratings on more subjective areas such as independence and communication skills.

The plaintiff ranked below her peers on many of these criteria. The HR team also concluded that, if the plaintiff were retained, she would require significant training on two other dispatching systems being used over the three areas that were slated to be consolidated.

At the conclusion of the meeting, the plaintiff was one of the six selected for termination in the RIF. As a result of unrelated resignations and terminations, the employer ended up needing to terminate only two operations supervisors. The plaintiff returned to work March 4, 2016. On March 31, she was notified of her termination as part of the RIF.

In addition to claiming that her termination was motivated by gender discrimination in violation of state law, the plaintiff argued that her selection for the RIF violated the FMLA. Neither the lower court nor the 8th Circuit agreed.

To demonstrate that the RIF was pretext for discrimination based on her FMLA use, the plaintiff argued that she had received a favorable review shortly before her selection. Acknowledging that a close-in-time favorable review could demonstrate that the stated reason for discharge was false, the appeals court rejected it as such in this case because the "favorable review" was instead a thank-you note and gift for completing the prior year without any incidents.

[SHRM members-only toolkit: Coordinating Leaves of Absence]

Noting that the plaintiff may well have deserved commendation for avoiding incidents in the

prior year, the court found that such acknowledgment did not undermine the employer's reasoning because her "qualifications still compared unfavorably" with her fellow operation supervisors. The court also considered, among other things, the facts that no one in the HR team meeting said anything negative about the plaintiff's leave and three of the individuals retained in the RIF had also taken FMLA leave.

The court stated that "[u]sing FMLA leave does not give an employee any greater protection against termination for reasons unrelated to the FMLA than was available before."

Button v. Dakota, Minnesota & Eastern Railroad Corp., No. 19-1398 (June 30, 2020).

Professional Pointer: Individuals out on FMLA leave can be considered for a RIF just like their colleagues actively at work, at least where employers have carefully documented the objective criteria used for the RIF selection and they avoid consideration of any protected leave.

Susan Carnell is an attorney with Lorenger & Carnell PLC, the Worklaw® Network member firm in Alexandria, Va.