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Can I Be Fired For Poor Job Performance After Using FMLA?

by | Oct 4, 2022 | Employment Law, Family Medical Leave Claims, Federal Law Update, Retaliation, Wrongful Termination |

The Family and Medical Leave Act (“FMLA”) provides qualifying individuals the right to take up to 12 weeks of unpaid leave to attend to personal or certain family medical issues. Additionally, the FMLA prohibits employers from retaliating against employees for taking FMLA leave. 29 U.S.C. § 2615(a)(2). (Best Law Read: What Is The Difference Between FMLA “Interference” And “Retaliation”?; Does Asking For Sick Time Trigger My FMLA Rights?; Can Your Employer Limit Your FMLA Leave?).

In the vast majority of circumstances, the FMLA’s prohibition against retaliation would be violated when an employer adopts an immediate supervisor’s recommendation to fire an employee for taking FMLA leave. In today’s case, Parker v. United Airlines, Inc., No. 21-4093, 2022 WL 4454466, at *1 (10th Cir. Sept. 26, 2022), the United States Court of Appeals for the Tenth Circuit addressed the exception that proves the rule. Specifically, the United States Court of Appeals for the Tenth Circuit held: “Retaliation entails a causal link between an employee’s use of FMLA leave and the firing. That causal link is broken when an independent decisionmaker conducts her own investigation and decides to fire the employee.” Let’s break this down a bit.

What is the cat’s paw theory?

Top FMLA Lawyer Answer: The cat’s paw theory imputes a supervisor’s illegal motive to the employer if the motive influenced the employer’s decision to take an adverse employment action against that employee. (Best Law Read: What Is The Cat’s Paw Theory Of Liability?; What Constitutes An Adverse Employment Action Under Title VII?; What Is An Adverse Employment Action?). Essentially, it means that even though the direct supervisor did not make the decision to fire the protected employee, if a decision maker (who holds no independent unlawful bias) relies substantially on the recommendation of that biased direct supervisor, the employer will still be liable.

How do employers beat the cat’s paw theory?

Wrongful Termination Attorney Answer: The most direct way is to prevent the decision maker from relying on simply the recommendation or evaluation of the biased direct supervisor. Indeed, it appears that that United Airlines has a system set up to filter out any bias by the direct supervisor. Specifically, under United Airlines’ procedures, once a direct supervisor places an employee up for termination, the matter is turned over to a wholly separate manager to evaluate the conduct and issue, including conducting an independent investigation. Further, should the employee not like that decision, the employee can appeal to a separate evaluator in management that will also independently review the situation. At both levels, no deference is given to the direct supervisor’s opinions – although events reported by the direct supervisor will be considered.

What happened in Parker?

Best Employees’ Rights Attorney Answer: Parker received calls as part of United’s booking flight reservations call center. I was undisputed that Parker qualified for and took FMLA leave because of her vision disorder and to care for her father, who had been diagnosed with cancer. Approximately five months after United approved Parker’s FMLA leave, her direct supervisor believed that Parker was actively avoiding her work by telling callers that she would get additional information, putting them hold, and then spending that time chatting with coworkers about personal matters. At the first meeting, the direct supervisor confronted Parker with three recorded calls. On the first, Parker only spoke to a caller for approximately four minutes, but admittedly “failed to disconnect the call when saying goodbye” for another 54 minutes, which “resulted in a hung call for a huge amount of time.” Essentially, Parker bought herself a free hour by simply not disconnecting the call. The second recorded call showed that Parker put the caller on hold for over 18 minutes while Parker admittedly “vented [her] home and work frustrations.” The third call revealed that Parker put another caller on hold for over 20 minutes while she explained that she was “ trying to regroup [her] emotions” and then hung up on the caller.

The supervisor suspended Parker pending further investigation. United’s policies prohibited the direct supervisor from firing Parker and required the selection of a completely separated manager to conduct a meeting and to allow participation by Parker, her supervisor, and a union representative. At the meeting, the direct supervisor presented summaries of a dozen other calls, including several very lengthy hold times where Parker performed nominal work. Parker and the Union representatives acknowledged the decline in her performance and the union representation said that there was “enough to see the pattern,” but asked for progressive discipline instead of a firing. The independent manager elected to fire Park for gross violations of her duties.

Parker sued for wrongful termination under the FMLA.

The United States Court of Appeals for the Tenth Circuit held that this independent investigation and review process broke any causal connection between the direct supervisor’s animus for using FMLA and the termination of employment:

Ms. Parker argues that her use of FMLA leave had sparked retaliation from her supervisor. For the sake of argument, we can assume that Ms. Parker is right. With that assumption, we’d need to decide whether United’s procedures had broken the causal chain between the supervisor’s retaliatory motive and the firing. In our view, United broke the causal chain by directing other managers to independently investigate and decide whether to adopt the supervisor’s recommendation. See Singh v. Cordle, 936 F.3d 1022, 1038 (10th Cir. 2019) (“One way an employer can ‘break the causal chain’ between the subordinate’s biased behavior and the adverse employment action is for another person … higher up in the decision-making process to independently investigate the grounds for dismissal.”). … To challenge these arguments, Ms. Parker relies on a cat’s paw theory. But this theory doesn’t apply when independent decisionmakers “conduct their own investigations without relying on biased subordinates.” Ward v. Jewell, 772 F.3d 1199, 1205 (10th Cir. 2014).

Parker appealed the decision but declined to participate in the process. At that hearing, the union representative conceded Parker’s “call avoidance and a lapse in good judgment,” and finding of “egregious behavior” resulting “in significant customer disservice.” As a result, the termination was upheld. The United States Court of Appeals for the Tenth Circuit held that this appeal further broke any causal connection:

Though Ms. Parker had already been fired, she admitted that the grievance could have resulted in reinstatement. Oral Arg. at 5:26–5:56. And we’ve held that the causal chain is broken when an independent decisionmaker reviews the firing after it’d taken place. Singh v. Cordle, 936 F.3d 1022, 1039 (10th Cir. 2019) (“The causal chain can even be broken by an independent review that takes place after the adverse action.”); see Thomas v. Berry Plastics Corp., 803 F.3d 510, 517 (10th Cir. 2015) (holding that the claimant’s “virtually immediate post-termination review process—which was designed to identify and unwind termination decisions that violated company practices and policies—sufficiently constrained any retaliatory animus that [the immediate supervisor] may have possessed”).

Id. at *8.

In the end, all of this seems like a very complicated way of coming to the conclusion that Parker has no claim because she was repeatedly busted for not doing her job. The protections afforded by the FMLA against retaliation will not save an employee who refuses to properly do his or her job.

What should I do if I was fired for lies after using FMLA Leave?

Best Medical Leave From Work Lawyer Answer: The most important thing that you can do if your employer is retaliating against you for using your Family Medical Leave Act (FMLA) rights, be it FMLA interference or FMLA retaliation, is to call the right attorney as quickly as possible to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). The FMLA is an extremely complex set of laws that can apply very differently based on your particular set of facts. Your best option is not to wait. Call our top attorneys in Ohio, Michigan, and North Carolina. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting disabled employees’ rights under the FMLA, ADA and Ohio employment law. Our lawyers will be here to get you the FMLA leave that you are entitled to or fight to get you paid for being wrongfully fired.


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