Clearly Drafted Attendance Policy Halts FMLA Retaliation Claim

Louisville, KY (WorkersCompensation.com) – Terminating an employee for absences he incurs after using up his FMLA leave can expose an employer to retaliation claims. 

However, as the court in Woodward v. Reynolds Consumer Products, LLC, No. 3:20-cv-544-DJH-LLK (W.D. Kentucky 03/29/22) explained, an employer can defend itself by showing it acted in accordance with a clearly drafted attendance policy. 

In the Woodward case, a forklift operator took FMLA leave to help care for his minor son after he suffered a heart attack. The employee started using his leave in August 2019 and exhausted it on Nov. 25, 2019.  

The company had a point system to monitor employee attendance, administered through a third-party website. Under the system, an employee received one point for an unauthorized absence and an additional point if the employee failed to notify the website of the absence.  

If an employee received eight points during a 12-month period, it would lead to termination. However, the company repeatedly issued “last-chance” letters to employees facing termination, allowing them to stay employed and cure their absenteeism. 

The forklift operator accumulated 15 attendance points at the time of his termination, nine of which occurred in November and December of 2019. It was undisputed that those absences were not authorized under the FMLA. 

The company terminated the forklift operator on Dec. 6, 2019, without issuing him a last-chance letter. 

The forklift operated sued the company for retaliation under the FMLA. Specifically, he argued the company’s failure to issue him a last-chance letter, when it done so for other staff, showed that its stated reason for firing him was just a cover for retaliation. 

An employee may establish an initial retaliation claim based on termination by demonstrating that: 1) he engaged in activity protected by the FMLA; 2) the employer knew about that activity; 3) the employer subsequently terminated the employee; and 4) there was a causal connection between the protected activity and termination. Once the employee establishes those four elements, the burden shifts to the employer to provide a legitimate, non-retaliatory reason for the termination. The employee may then proceed with his case if he can show that the reason given is a pretext. 

The court stated that, even assuming the forklift operator could establish an initial claim, the company provided a non-retaliatory reason for ending his job—namely his attendance violations. That meant the forklift operator had the burden to show that reason was pretextual. 

The court pointed out that the forklift operated didn’t dispute that he accumulated 15 attendance points that were not FMLA-authorized. Instead, the employee argued that his termination was a cover for retaliation because the company applied the last-chance policy "arbitrarily.”  

The court acknowledged that the company issued last-chance letters to several other employees facing termination. However, those employees engaged in substantially different conduct, the court observed. The evidence showed that those employees had accumulated eight points in a 12-month period. “But [the forklift operator] received fifteen attendance points before his termination on December 6, 2019, including nine points in November and December,” the court wrote. 

Concluding that the forklift operator failed to demonstrate pretext, the court granted the company’s motion for summary judgment.