What Do You Think: Did Firing Director 2 days after FMLA Leave Close Book on Retaliation Case?

Flint, MI (WorkersCompensation.com)–When an employer fires a worker shortly after the worker utilizes FMLA leave, it can look like the employer is engaging in reprisal for the worker exercising of her FMLA rights.  

But whether the two things are really connected may hinge on a closer inspection of the circumstances, as illustrated by a case involving a campus director for a non-profit medical training school.  

The director had rheumatoid arthritis, a condition which caused her joints to swell and become painful. The school first approved the director’s use of intermittent FMLA leave for the condition in June 2017. The director utilized that leave throughout her tenure without any opposition from the school, including from approximately May 23 to May 28, 2019. 

On May 30, 2019, the school terminated the director. On the same day, the school filled out a termination form. The form listed the reason for the termination as inappropriate conduct, namely due to "several complaints of abusive behavior.” 

The director sued the school for FMLA retaliation.  

The school responded that it fired the director because of other staff members’ complaints about the director’s communication style. Common complaints, according to the school’s documentation, identified the director as having an "attitude," being abrasive, using harsh language, and employing a negative leadership style. 

To initially establish an FMLA retaliation claim based on termination, a fired employee must show she was terminated because she exercised her FMLA rights.  

Where an adverse employment action occurs shortly after an employer learns of a protected activity, that’s generally sufficient to establish a causal connection. However, the court explained, temporal proximity alone is insufficient when the temporal relationship is not “unusually suggestive.” 

Did employer terminate director for utilizing FMLA leave? 

A. Yes. The fact that the employer terminated her just two days after she last used leave was enough to establish a causal link between the two. 

B. No. The school always provided her FMLA leave without any opposition to it. 

If you chose B, you sided with the court in McNutt v. Ross Educ., LLC, No. 20-34-DLB-EBA (E.D. Ky 08/24/22), which held that despite the timing of the firing, its proximity to the director’s use of FMLA leave was not “unusually suggestive.”  

The court pointed out that the school approved the leave in June of 2017, almost two years prior to her termination. The court added that the director’s FMLA leave was approved, and used, many times throughout her tenure. Further, the director acknowledged that she never had any issue when submitting and taking FMLA leave in the past. 

Finally, the school articulated valid reasons for terminating the director. Thus, the court observed this was not a case where little other than FMLA activity could have motivated the firing.  

Based on the circumstances, the temporal proximity in this case was not "unusually suggestive" of retaliation. Because the director failed to show retaliatory intent following her use of FMLA leave, the court granted the school summary judgment. 

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