What Do You Think: Could County Fire Worker on FMLA Leave for Poor Performance?

Little Rock, AR (WorkersCompensation.com) – It never looks good when an employer fires a worker while they are on FMLA leave. It can create the appearance that the termination was reprisal for taking the leave, or an attempt to interfere with it.

But what if the employer says it went into the worker’s office when she was on leave and discovered a trove of projects she should have finished but didn’t. Is that enough to prevent the worker’s interference or retaliation case from going to trial?

A federal District Court in Arkansas addressed that issue in the case of an employee who worked for Pulaski County's Human Resources Department for over two decades. During those years, the employee received promotions and strong performance reviews most of that time.

Sometime toward the start of 2020, the HR director assigned her the task of compiling a spreadsheet of employee data. The project was due by the end of the year but was not finished by then.

The employee submitted a second draft on Friday, Feb. 26, 2021. She called in sick the following Monday and Tuesday. The director informed her the draft was still missing some data. The next day, the employee requested FMLA leave based on her doctor’s advice. The doctor was concerned about her health given her medical history, which included a stroke in 2009.

The director gave the employee 15 calender days to complete her FMLA paperwork. During that time, the director completed the spreadsheet project. Allegedly, staff members who assisted her went to the employee’s office and found several projects that the employee had failed to complete.

When the employee went to work to turn in her FMLA paperwork, her office had been cleared out. Soon after, the county fired her for "negligent job performance.”

The employee sued the county. She alleged it engaged in FMLA interference by retaliating against her for attempting to take leave, and by terminating her for taking leave. The county asked the court to grant it summary judgment and dismiss the case.

To establish an FMLA claim, an employee must allege, among other things, that the employer had notice of the employee’s need for leave and interfered with the employee’s right to take leave.

Could the employee continue with her FMLA interference lawsuit?
A. No. The county granted her leave, so there could not have been FMLA interference.
B. Yes. A reasonable jury could find that the county terminated her because she took FMLA leave.

If you chose B you sided with the court in Persons. v. Pulaski County, No. 4:21-CV-00975-BSM (E.D. Ark. 12/22/23), which held that the employee’s claim was solid enough to go to a jury.

First, the court pointed out that every termination of an employee while she is taking FMLA leave is considered FMLA interference. It was possible that the county would have fired her even if she didn’t take leave, the court observed, but that was for a jury to decide.

Second, a reasonable jury could find that the county retaliated against the employee for her protected conduct of taking FMLA leave. “[A] reasonable jury could find that the county was upset that [the employee] took FMLA leave when it needed her to complete the spreadsheet,” the court wrote. If that was the case, it would be enough to establish that it fired her because she took leave.

Further, while the county asserted that it fired the employee for poor job performance, a reasonable jury could find that explanation to be a pretext—merely a cover for retaliation.

The court denied the county’s request to dismiss the case.

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