Was Putting Employee on PIP 3 Months after FMLA Leave Retaliatory?

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Waltham, MA (WorkersCompensation.com) -- FMLA retaliation lawsuits often come down to whether the employee can poke holes in an employer’s stated valid reason for firing (or taking other negative action) against the employee. A case involving an employee who did marketing for a private university highlights the types of evidence that can shift the case one way or the other.

The employee started working for the institution around October 2016. In December 2016, her supervisors emailed each other that they continued to worry about her job performance–specifically, her productivity and how she used her time.

In January 2018, the employee requested FMLA leave, which the university eventually granted. In May, three and half months after the employee’s FMLA leave was granted, the supervisors placed her on a performance improvement plan.

The employee sued the university for FMLA retaliation.

To make out a prima facie case of FMLA retaliation when there is no direct evidence of retaliation, an employee must show:

• She availed herself of a protected FMLA right; 
• She was adversely affected by an employment decision; and 
• There was a causal connection between [her] protected conduct and the adverse employment action

Once the employee establishes the above, the employer may defend itself by showing that it had a legitimate, non-retaliatory reason for taking the adverse action. At that point, the employee can only continue with the case if she shows that the employer’s state reason is a pretext for retaliation.

Did the employee show the stated reason for the PIP was a cover for retaliation?

A. Yes. She was placed on the PIP less than four months after requesting leave.

B. No. Her supervisor’s concerns were well-documented and predated her PIP.

If you selected B, you agreed with the court in Stratton v. Bentley University, No. 22-1061 (1st Cir. 08/15/24), which held that the employee failed to show that the employer’s concerns about her productivity were disingenuous.

The court noted the only evidence the employee had of pretext was the closeness in time between her FMLA request and the imposition of her PIP. 

The court ackolwedged that very close temporal proximity between the exercise of FMLA rights and an employer’s adverse action can indicate retaliation. But, at least in this case, it was not sufficient to show the employer was motivated by discrimination.

Here, the employer provided documentation showing that, well before the employee sought FMLA leave in January 2018, it had serious concerns about her performance. This bolstered the employer’s statement that it was not her FMLA leave, but her poor performance, that motivated it to place the employee on a PIP.

“By contrast, [the employee] does not identify in the record any negative comments, complaints, or expressions of reluctance by her superiors or co-workers about her FMLA leave-taking,” the court wrote.

This was not, the court stated, a situation involving an employee with an unblemished record who, shortly after seeking FMLA leave, was subjected to an adverse employment action without any explanation.

The court noted that the employee argued that her supervisors did not accurately perceive her performance. But whether their perception of her performance was fair or accurate was irrelevant.

“The key point is that [the employee] identifies nothing in the record that puts in dispute the perception of her supervisors, justifiable or not, that her performance was lacking before she requested or took FMLA leave,” the court wrote.

Finding insufficient evidence of pretext, the 7th Circuit affirmed the District Court’s ruling.

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