How The Best Employment Lawyers Build A Winning Record
Getting fired right after asking for FMLA leave feels like the whole case.
The employee sees the timeline. The employer gets the paperwork required under the Family and Medical Leave Act (“FMLA”). Days later, the employer cuts the job. To any normal person, that looks suspicious. It looks like retaliation. And sometimes it is. Timing can be powerful evidence in an employment law case. It can make a wrongful termination claim feel obvious. It can make an employee think, “They fired me because I asked for leave.”
But court is not a group chat. Suspicion does not survive summary judgment unless the record proves the legal test.
In Conklin v. ABEC Inc., No. 25-1905, 2026 U.S. App. LEXIS 12643 (3d Cir. May 1, 2026), Tammy Conklin sued ABEC after she was fired. She brought FMLA retaliation and interference claims. On the retaliation claim, Conklin had two pieces of the puzzle. She properly submitted FMLA paperwork to ABEC human resources personnel. Then ABEC terminated her either eighteen or twenty-nine days later, depending on whether the clock started when HR sent her the FMLA process letter or when she submitted the paperwork.
That is close timing. Close enough to make any employee wonder what really happened.
The United States Court of Appeals for the Third Circuit focused on the chief operating officer, who made the unilateral decision to terminate Conklin’s employment. The record did not show that this decisionmaker knew about Conklin’s FMLA-protected activity. Worse, Conklin did not depose the ABEC employees involved in her termination. The record also did not answer the question the best employee rights attorney would have chased hard: what did HR do with the FMLA information after receiving it?
That failure mattered. If HR passed the FMLA information to the decisionmaker, that could help prove knowledge. If HR sat on the information while the termination moved forward, that could create a different fight about how the employer handled protected leave information. If someone who knew about the FMLA request influenced the firing, that could open another path. But none of those paths matter if the lawyer does not build them into the record.
Legal Takeaway(s):
An employee can use temporal proximity to help prove FMLA retaliation, but close timing usually requires proof that the decisionmaker knew about the protected FMLA activity. The best employment lawyers do not rely on timing alone; they build the record through discovery, depositions, internal documents, HR communications, and summary judgment briefing so the employer cannot win by pointing to missing proof.
Can Timing Alone Prove FMLA Retaliation After Wrongful Termination?
Sometimes. Close timing can help prove FMLA retaliation, but only if the record connects the FMLA request to the firing decision. A calendar is evidence. It is not the whole case.
Conklin had the timing. She invoked her FMLA rights when she properly submitted FMLA paperwork to ABEC human resources personnel. ABEC fired her either eighteen or twenty-nine days later. That is not stale timing. That is close enough to raise eyebrows.
The Third Circuit Court of Appeals held that courts “can infer causation when the ‘temporal proximity’ between the FMLA-protected activity and the adverse action is ‘unduly suggestive.’” Conklin, 2026 U.S. App. LEXIS 12643, at *2. That rule gives an employee a real path when an employer fires fast after an FMLA request.
But fast is not enough. The Third Circuit Court of Appeals held that when an employee relies on close timing to prove causation, the employee must also show “that the decision maker had knowledge of the protected activity.” Id. at *2. That is where Conklin’s claim broke.
ABEC’s chief operating officer made the unilateral decision to terminate Conklin. The record did not show that the chief operating officer knew about her FMLA-protected activity. So the timing looked suspicious, but the proof stopped short of the legal test.
That is the hard lesson. Close timing can start a wrongful termination case. Decisionmaker knowledge keeps it alive.
Practical Tip: If you are fired soon after requesting FMLA leave, preserve every email, HR message, text, calendar invite, and conversation showing who knew about your FMLA request before the termination because temporal proximity becomes stronger when it is tied to decisionmaker knowledge.
Best FMLA Lawyer Blogs on Point:
How Do Employees Prove The Decisionmaker Knew About FMLA Leave?
An employee proves decisionmaker knowledge by showing that the person who fired them knew about the FMLA request before making the termination decision. That was the missing link in Conklin’s case. ABEC’s human resources personnel received her FMLA paperwork. But the chief operating officer made the unilateral decision to terminate her employment. The Third Circuit Court of Appeals held that “nothing in the record demonstrates that ABEC’s chief operating officer, who made the unilateral decision to terminate Conklin’s employment, knew about Conklin’s FMLA-protected activity.” Conklin, 2026 U.S. App. LEXIS 12643, at *2-3.
Start with the easiest source: the employee. A good attorney asks every version of the knowledge question before discovery ever starts. Who did you tell? What did you send? Who responded? Did any manager mention FMLA? Did anyone complain about your leave request? Did the person who fired you say anything about paperwork, absences, medical leave, HR, timing, or “problems” after the request? If the decisionmaker mentioned the FMLA request to the employee, the employee’s affidavit should be enough to create a factual dispute for a jury. Credibility belongs to the jury, not the judge.
The next step is written discovery. Interrogatories should ask who received the FMLA paperwork, who reviewed it, who discussed it, who knew about it, who participated in the termination, who recommended termination, and when each person learned each fact. Requests for production should demand HR notes, FMLA files, leave logs, termination drafts, email chains, internal messages, calendars, meeting notes, personnel records, decision documents, and metadata showing when documents were created, edited, forwarded, opened, or accessed. Metadata matters because polished employer explanations tell one story. Timestamps can tell another.
The employer’s policies and practices matter too. A top employee rights attorney would demand the written FMLA policy, leave-processing procedures, HR workflow, management-notification rules, discipline-review policies, and anything showing whether FMLA requests normally moved up the chain before discipline or termination. If the employer’s normal practice was to report FMLA requests to leadership, that practice could help prove knowledge or expose why the company suddenly claims the decisionmaker knew nothing.
Then come depositions. HR should be deposed. The decisionmaker should be deposed. Supervisors, leave administrators, payroll employees, and anyone in the termination chain should be deposed. Former employees with knowledge of the employer’s FMLA reporting practices may matter as well. The written policy tells one story. The people who lived under it often tell the better one.
Conklin’s record did not get there. The Third Circuit Court of Appeals noted that Conklin “did not depose any of the ABEC employees involved in her termination.” Id. at *3. That left her asking the Court to impute constructive knowledge to the decisionmaker. The Third Circuit Court of Appeals held, “That does not suffice.” Id. Actual knowledge mattered. Assumption did not.
Knowledge is not a vibe. It is actual evidence or it is nothing.
Practical Tip: If HR receives your FMLA paperwork, keep proof of submission and write down every person who discusses the request with you, especially managers or decisionmakers, because sworn testimony about what they said can help create the factual dispute needed to reach a jury in an FMLA retaliation case.
Best Wrongful Termination Attorney Blogs on Point:
Can Bad Lawyering Ruin An Employee’s FMLA Retaliation Case?
Yes. An FMLA retaliation claim can die if the attorney does not build the record and then defend that record at summary judgment. Discovery creates the proof. Summary judgment is where the lawyer has to use it.
Conklin’s retaliation claim failed because the record did not prove decisionmaker knowledge, as discussed above. Her interference claim failed for a different reason: she did not challenge ABEC’s summary judgment arguments on that claim. The Third Circuit Court of Appeals held that a party’s failure to “make [an] argument at summary judgment below” forfeits that argument. Conklin, 2026 U.S. App. LEXIS 12643, at *3.
That rule is unforgiving. A claim can be in the complaint. It can be discussed earlier in the case. It can still be lost if the employee’s attorney does not respond when the employer moves for summary judgment. The Third Circuit Court of Appeals held that forfeiture can occur “even if the party raised [the argument] earlier in the litigation.” Id. at *3-4.
That is not a paperwork technicality. Summary judgment is the employer’s attempt to end the case before a jury ever hears it. If the employer attacks causation, knowledge, interference, damages, or any other required element, the employee’s lawyer must answer with record evidence and legal argument. Silence is not strategy. Silence is surrender dressed up as a brief.
Bad lawyering rarely announces itself with fireworks. It looks like an unanswered argument, a claim left undefended, a record cite that never appears, or a summary judgment response that assumes the judge will connect the dots. Judges do not build employee cases. Lawyers do.
The best lawyer does not just file the case. The best lawyer preserves it.
Practical Tip: Before hiring an attorney for an FMLA or wrongful termination case, ask how much of their practice focuses on employee rights, whether they have handled summary judgment in employment law cases, what trial experience they have, and whether they have the resources to take depositions, review records, and fight the employer’s motion practice. The best lawyer is not just available; the best lawyer is equipped to build and defend the proof your case needs.
Best Employee’s Rights Law Firm Blogs on Point:
What Is The Best Employment Lawyer For Employees Fired After Requesting FMLA?
If you were wrongfully fired soon after requesting FMLA, the best employment lawyer is not the one who simply spots the bad timing. Any lawyer can circle the dates on a calendar. The real work is proving what the employer knew, who knew it, when they knew it, and how that knowledge reached the termination decision. That is where FMLA retaliation cases are won or lost. Timing creates suspicion. Evidence creates leverage.
Spitz, The Employee’s Law Firm is one of the largest law firms in the United States dedicated to employee rights. Employees get attorneys who know how to build the record before the employer turns missing proof into a defense. Spitz offers free initial consultations, a no-fee guarantee, deep trial experience, empathy, and a history of great results for employees facing FMLA retaliation, discrimination, employment discrimination, wrongful termination, and being wrongfully fired. If your employer fired you after you asked for FMLA leave, call Spitz and speak with an employee rights attorney who knows how to protect the claim before the company’s story becomes the only story.
FAQ
Can Timing Alone Prove FMLA Retaliation After An Employee Is Fired?
Timing can help prove FMLA retaliation, but timing alone may not be enough. An employee usually needs evidence that the employer decisionmaker knew about the FMLA request before the wrongful termination.
How Close Does A Firing Need To Be To An FMLA Request To Show Temporal Proximity?
There is no automatic number of days that proves temporal proximity. Courts look at how close the FMLA request and firing were, the context, and whether the employee can connect the timing to actual employer knowledge.
What Evidence Helps Prove The Employer Knew About An FMLA Request?
Useful evidence can include HR emails, FMLA paperwork, leave logs, internal messages, termination documents, manager comments, deposition testimony, affidavits, metadata, and proof of the employer’s normal FMLA reporting practices.
Can HR Knowledge Prove FMLA Retaliation If The Decisionmaker Denies Knowing?
HR knowledge may help, but the employee should build evidence showing how the FMLA information reached the decisionmaker or influenced the termination process. Without that connection, the employer may argue that the firing decision was not tied to protected FMLA activity.
What Is A Motion For Summary Judgment In Civil Litigation?
A motion for summary judgment asks the judge to decide a civil claim before trial because the moving party argues there is no genuine dispute of material fact and the law entitles it to judgment. The process usually requires the other side to respond with admissible record evidence, cite the facts that create a jury question, and explain why the legal elements of the claim can still be proven at trial. If the motion is granted, the claim ends without a jury ever hearing the evidence.
Employment Lawyer Disclaimer
This employee rights, FMLA retaliation, workplace discrimination, and wrongful termination blog provides general information about employment law, employee protections, employer obligations, discrimination, being wrongfully fired, temporal proximity, summary judgment, and when an attorney or lawyer may be able to help, but it should not be taken as legal advice. Every employee’s situation is different, and readers should consult with a qualified employment lawyer for advice about their specific facts, deadlines, claims, defenses, damages, and legal options. No promises are being made about any outcome, result, settlement, verdict, or claim value. This blog is a legal advertisement, and reading it does not create an attorney-client relationship with Spitz, The Employee’s Law Firm, any Spitz attorney, or any Spitz lawyer.