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Yes, You Can Be Fired For Poor Performance And Unrelated Absences While Using FMLA

by | Jan 5, 2023 | Employment Discrimination, Employment Law, Family Medical Leave Claims, Federal Law Update, Wrongful Termination |

As our employment discrimination lawyers have blogged about, complaints of discrimination and/or harassment will not likely save a bad employee from being fired. Today, we look at the recent United States Court of Appeals for the Eighth Circuit case Corkrean v. Drake Univ., 55 F.4th 623 (8th Cir. 2022), in which Margaret Corkrean sued her former employer, Drake University her former supervisor, Gesine Gerhard, for wrongful termination in violation of her rights under the Family and Medical Leave Act (“FMLA”).

What is the FMLA?

The FMLA is a federal law that provides eligible employees with up to 12 workweeks of leave over a 12-month period if the employee has a “serious health condition that makes the employee unable to perform the functions of the position of such employee” or to provide care to sick family member. 29 U.S.C. § 2612(a)(1)(D). The 12 weeks of leave can be used all at once or intermittently to address ongoing health issues or flare ups.

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What is a serious health condition under the FMLA?

The FMLA defines a “serious health condition” to be any “illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). Failing to provide or otherwise blocking an employee’s right to take such leave will give rise to an FMLA interference claim.

Can I be fired for using FMLA leave?

The FMLA “makes it unlawful for an employer to ‘interfere with, restrain, or deny the exercise of or the attempt to exercise’ rights provided under the FMLA.” Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1005 (8th Cir. 2012) (quoting 29 U.S.C. § 2615(a)(2)). It also makes it unlawful for “any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful” by the FMLA. 29 U.S.C. § 2615(a)(2). Firing or otherwise taking an adverse employment action against an employee for using FMLA leave will give rise to an FMLA retaliation claim.

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How do I prove that I was fired for using FMLA leave?

To prove a claim for FMLA retaliation, an employee must produce sufficient evidence that (1) the employee requested and/or used FMLA leave rights, (2) the employer subsequently took an adverse action against the employee, and (3) a causal connection exists between the adverse action and the protected activity. If the employee presents such evidence, the employer then must state a legitimate nondiscriminatory reason for taking the adverse action, such as firing the employee. The last step in this burden shifting mechanism is for the employee to show that the employer’s stated reason is pretext – meaning not true or not really what motivated the adverse action.

How do I show that my employer lied about why I was fired?

In Corkrean, the United States Court of Appeals for the Eighth Circuit held on this point: “there are two primary methods by which a claimant can raise a material fact question on the issue of pretext. … First, she may show that the employer’s explanation is unworthy of credence … because it has no basis in fact. … Second, she can persuad[e] the court that a prohibited reason more likely motivated the employer.” Id. (citation and integral quotations omitted). In Corkrean, the Court of Appeals focused on the pretext issue.

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What happened in Corkrean?

Corkrean worked for Drake for 28 years, including the last 16 years as the Budget and Office Manager for the College of Arts and Sciences where she managed the operating budget, supervised the tracking of personnel data, and directly handled faculty appointments and payroll. After her 2004 diagnosis of multiple sclerosis (MS), Corkrean continued to work positively with various Deans without filing formal FMLA paperwork.

From the time that Gerhard, who was initially unaware of the MS diagnosis, was appointed the Dean in July 2018, he butted heads with Corkrean, in part due to performance issues such as payroll issues and poor communication. When Gerhard would not permit Corkrean to unilaterally take time off without notice for medical issues, Drake provided Corkrean with FMLA papers and then approved her intermittent leave.

Thereafter, further problems with Corkrean’s performance were documented, including:

  • Being late for work and taking unapproved time off for unstated reason;
  • Taking unapproved time off to work another job for the Iowa Cubs baseball team;
  • Communicating unprofessionally with various staff employees;
  • Repeatedly missing critical budget deadlines; and
  • Making errors in work product.

These work issues were presented to Corkrean at several meetings and in a performance improvement plan. Around the same time, Corkrean complained of being harassed by Gerhard. In response, HR skipped the investigation and went straight to a remedial plan to document and protect her ability to take FMLA leave. Corkrean agreed that this plan was “good.”

When Corkrean’s performance issues continued, the employer fired her on October 7, 2019, citing in writing “continued mistakes, dismissive attitude toward these mistakes, and continued unapproved non-FMLA absences from work.”

Can I be fired for poor performance after using FMLA leave?

While an employer cannot fire an employee whose used FMLA by making up false bad performance or disciplinary issues, companies can still fire employees for legitimate problems. In Corkrean, the United States Court of Appeals for the Eighth Circuit held:

Crucially, an employee who exercises her rights under the FMLA “has no greater protection against termination for reasons unrelated to the FMLA than she did before” doing so. Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 958 (8th Cir. 2012). “Otherwise, a problem employee on thin ice with the employer could effectively insulate herself from discipline by engaging in protected activity.” Malloy, 756 F.3d at 1091.

Likewise, in  Estrada v. Cypress Semiconductor (Minn.) Inc., 616 F.3d 866, 871 (8th Cir. 2010), the United States Court of Appeals for the Eighth Circuit held: “Because an employee cannot claim protection from the FMLA for disciplinary action … as a result of absences that are not attributable to her serious health conditions, sufficient unexcused absences may justify her discharge.”

While employee’s rights lawyers can point to disputes of fact regarding performance and disciplinary issues to hopefully get the case to a jury, there was no dispute of fact in Corkrean:

Since her termination, Corkrean has admitted to several of the documented performance deficiencies including failing to pay faculty members the appropriate amounts. Further, she does not challenge the Appellees’ allegations that she was often late to work, missed deadlines, took unapproved time off for personal reasons, frequently failed to communicate why she would be absent, and did not always fill out FMLA paperwork despite repeated requests for her to do so. Additionally, Corkrean does not dispute that the Appellees never denied her FMLA leave. … It is undisputed that Corkrean’s employment record under Gerhard was replete with performance deficiencies and unexcused attendance issues. Thus, Corkrean’s termination was justified, and there is insufficient evidence of pretext to raise a jury question.

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What should I do if I was fired while on FMLA leave from work?

Best FMLA Lawyer Answer: If you’ve ended up here because you were wrongfully fired today after requesting or using FMLA leave, don’t stop with just reading this blog. You should

call the right attorney at Spitz, The Employee’s Law Firm to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical).  As you can see from the above employment law information, the FMLA is very complicated, and several different laws will likely also come into play. The best option is not to wait to call our top attorneys in Ohio, Michigan, Kentucky, and North Carolina.


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