What Do You Think: Did FMLA Leave Trigger Firing — or was Facebook to Blame?

Tampa, FL (WorkersCompensation.com) – To fend off an FMLA retaliation lawsuit brought by a fired employee, a company must provide the court a valid reason for its action. But what if it was mistaken about the employee’s wrongdoing? 

A federal District Court in Florida recently addressed that issue in considering whether an education services company fired its vice president for information technology as reprisal for his use of FMLA leave. 

The vice president sometimes posted things on his personal social media accounts that made his coworkers cringe. Some postings appeared race-related and, arguably, violated the company’s anti-harassment and social media policies. 

One post depicted a fishing line tied in the shape of a noose with a caption reading, "I was gonna go fishing this evening but I opened my tackle box and found this. Somebody's put this in there and I don't think it's funny at all."  

The vice president posted that image and caption around the time of a national news story concerning a NASCAR driver reportedly finding a noose in his garage. 

A coworker saw the post on her Facebook feed. She viewed it as correlated to the historical context of nooses as a symbol of slavery and killing people. Altogether, the vice president’s postings triggered several employee complaints. 

In early March, the vice president took FMLA leave to undergo surgery, returning to the office a month later. 

Around the same time, the company determined that the employee’s social media posts were "racially charged" and violated its non-harassment and social media polices. Those policies prohibited certain postings that were “based upon race.” Consequently, it terminated the employee. 

The vice president sued the company for FMLA retaliation. He argued the postings did not fall under the company’s policies. 

To establish an FMLA retaliation claim, an employee must show, in part, that the company took adverse employment action against him because he asserted his rights under the FMLA. Once the company provides a neutral reason for its action, the employee can proceed with the lawsuit only if he can show the company’s reason was a pretext for retaliation. 

Could the vice president proceed with his retaliation claim? 

A. Yes. His social media postings, while potentially offense, fell outside the scope of the company’s policies, either because they were not based upon race or because they were on his personal Facebook account. This suggested that the company didn’t have an actual valid basis for firing him. 

B. No. There was no evidence that the company didn’t actually believe the employee violated its policies. 

If you picked B, you agreed with the court in Urban v. C2 Educational Systems, No. 8:21-cv-0733-KKM-AEP (M.D. Fla. 07/26/22). 

First, the court found that the company provided a neutral reason for terminating the vice president. The employee’s postings could have rationally caused the company to believe he violated its policies. 

Because the company provided a valid reason for its action, the court stated, it was up to the employee to show that reason was merely a cover for retaliation.  

The court added that whether the company misapplied its policies when terminating him, was irrelevant.  

“Rather, … the question is whether [the vice president’s] evidence would allow a reasonable factfinder to conclude that [the company’s] reason for termination was not the real reason,” the court wrote.  

Because the vice president failed to show the company’s explanation was a pretext for FMLA retaliation, the court granted the company summary judgment.