What Do You Think: Did Probation Officer Lose Job Because She Left Work for Embryo Transfer?

Lebanon, PA (WorkersCompensation.com) An employee claiming FMLA retaliation may continue with her lawsuit, even if her employer points to a valid basis for firing her. However, the employee will have to first show that her employer’s stated reason for terminating her is not genuine, but rather just a cover for unlawful reprisal.

That issue arose in the case of a juvenile probation officer for the Court of Common Pleas of Lebanon County, PA. The officer took intermittent leave at various times between January 2017 to May 2017 for infertility treatments. The goal of these appointments was for her to eventually undergo an embryo-transfer procedure.

The P.O. received a positive annual review in April 2017. The review, however, reminded her to remain diligent regarding keeping her case files up to date. Supervisors had issued her a written warning in 2014 because she wasn’t updating her files.

In May 2017, supervisors reviewed case files for several probation officers, including the P.O. They completed the review on May 26, finding that the P.O. was returning to her old habit of not updating her files, which were purportedly rife with errors. The report found, for instance, that she failed to properly record most of her visits with juveniles.

The P.O. underwent the embryo-transfer procedure on June 10, 2017. She returned to work a few days later. On June 30, the state fired her, citing the issues with her files. The P.O. sued the state, arguing that it was retaliating against her for taking FMLA leave.

The court explained that once an employer provides a legitimate reason for terminating an employee, the employee has the burden of establishing that that reason was a pretext for retaliating.

Was the state’s excuse just a cover for retaliation?
A. No. The employee had a history of not updating her case files and was engaging in those errors once again.
B. Yes. The fact that she wasn’t fired in 2014 suggested that the 2017 termination was just reprisal for her medical leave.

If you selected B, you agreed with the court in Sinico v. Commonwealth of Pennsylvania, No. 22-2998 (3d Cir. 02/09/24, unpublished), which held that the probation officer failed to show her termination was pretextual.

The court rejected the P.O.’s argument that because she received a positive annual review in April 2017, it was implausible that the state decided to terminate her for work-related reasons a few weeks later, in June 2017. “[T]he case-file review that led to [her] termination was dated May 26, 2017, more than a month after the annual review was finalized,” the court wrote.

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The court pointed out that the case file review revealed that the officer failed to heed the reminder in her annual review to keep accurate records. While she reverted to her old habits, according to the file review, there was no reason to assume that the manager who conducted her annual review weeks earlier knew that. In fact, the comments on the review, which praised her improved record-keeping, while warning her to continue with that practice, indicated otherwise.

“[I]f anything, the annual review suggests that [the state’s] concern about recordkeeping deficiencies was not pretextual because managers continued to remind [her] about the importance of keeping timely and accurate records even when they praised her,” the court wrote.

Finally, the court was unpersuaded by the offier’s argument that the state didn’t fire her in the past when it found issues with her files. The fact that her employer gave her a second chance, the court observed, didn’t show that its stated motive was inauthentic, especially given that the errors were continuing.

The 3d Circuit affirmed the District Court’s ruling that the P.O. failed to show pretext and thus could not proceed with her retaliation claim.

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