What Happens When HR Says Employee Firing Was FMLA Retaliation?

By Eric B. Meyer

Here’s a new one: HR testifies that an employee firing was FMLA retaliation (yes, you read that right).

Better settle the case, right? Not if you’re Flannery Oaks Guest House. Instead, you move for summary judgment and try to get your former employee’s FMLA retaliation claim dismissed.

Was Andy Reid or Norv Turner calling that play?

How do you think it worked out for Flannery Oaks? (Hint: it failed miserably).

Facts of the case

How about I run down the facts of this case?

Plaintiff, who worked in the HR Department of Flannery Oaks Guest House, was approved for just over a month of leave under the Family and Medical Leave Act. While on leave, a Flannery administrator contacted Plaintiff and asked that she return to work before her scheduled return date.

Plaintiff did not return early. Instead, some time later — exactly four days before Plaintiff was to return to work, to be precise — Plaintiff was informed that her position had been eliminated, as part of a larger business reorganization. Plaintiff responded by asserting, among other things, an FMLA retaliation claim.

FMLA retaliation or legitimate business reason?

Under the FMLA, an employer may not discharge or otherwise discipline an employee because that employee has taken FMLA leave. You know where this comes up a lot? When employees get fired right around the time that they intend to return from FMLA. The timing, alone, makes it appear fishy.

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Then again, most of the time, there is a legitimate business reason for the termination. One such reason could be a position elimination as part of a larger reduction in force (RIF), as Flannery Oaks informed Plaintiff.

Then again, it doesn’t take a genius to figure out that a position-elimination defense is wholly inconsistent with a telephone call a few weeks earlier requesting that the Plaintiff report back to work before her approved FMLA time off ends. I’m not the sharpest tool in the shed, but that suggests to me that her position is not expendable.

But in case that subtlety was lost on the Court — which it wasn’t — the Court reviewed the deposition testimony of Flannery Oaks’ Human Resources Coordinator. She testified that, in her opinion, the termination of another employee, RIFed as part of the same reorganization, was FMLA retaliation. Consequently, the Court determined that a jury should decide whether Flannery Oaks’ reason for terminating the Plaintiff as part of the same reduction in force was legal or pretextual.

Two takeaways from this

There are two takeaways here: one for employers; one for their counsel.

  • Employers: There is an inherent danger in terminating an employee at or around the time she is scheduled to return from FMLA leave. Yes, you may have legitimate business reasons, but many courts recognize that the suspicious timing alone, is enough to permit a jury to decide whether there was business justification for the termination or just some FMLA retaliation afoot. Think about that before you terminate that employee, consider consulting an employment lawyer, and, for the love of God, if your facts resemble those of the Flannery Oaks case, don’t pull the trigger.
  • Attorneys: Avoid surprises like the bomb that Flannery Oaks’ HR Coordinator dropped at her deposition. Spend enough time with your key players before a deposition — or better yet, when you become aware of the plaintiff’s claim — so that you know, before they testify, what kind of stupidity may spew from between their gums.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.