Dive Brief:

• A Texas city’s alleged decision to fire an employee within minutes of her not showing up for work after she exhausted her leave under the Family and Medical Leave Act raised questions about why it really fired her, the 5th U.S. Circuit Court of Appeals held Oct. 2 in Murillo v. City of Granbury.
• Before her 12 weeks of FMLA leave ended, the employee asked the city’s HR coordinator if she could use accumulated vacation to extend her absence, according to court documents. Allegedly, no one got back to her. The first day she was scheduled to work following the expiration of her FMLA leave, a few minutes into her shift, her department head told the HR coordinator she wasn’t there. The HR coordinator allegedly responded, “Great! I was hoping she wouldn’t come in. Let’s term [sic] her.” Citing job abandonment, the city fired her later that day.
• The employee sued the city for retaliating against her for taking FMLA leave. A federal district court granted summary judgment to the city, but the 5th Circuit revived the case. The city argued the FMLA didn’t protect the employee because she was fired after her leave expired. That’s incorrect, the 5th Circuit explained. “An employee can still establish an FMLA retaliation claim even if the adverse action takes place after the end of FMLA leave,” the panel said. The timing of the discharge and the HR coordinator’s alleged comments raised questions over whether the city’s stated reason for firing the employee was a pretext for retaliation, the 5th Circuit held.

Dive Insight:

The FMLA prohibits employers from punishing or retaliating against an employee for exercising their rights under the statute, the U.S. Department of Labor reminds employers in a guidance.

A DOL field bulletin explains that retaliation occurs when an employer, including through a manager, supervisor, administrator or other agent, takes an adverse action against an employee because they used or attempted to use FMLA leave. The 5th Circuit’s Granbury ruling clarifies the FMLA still protects employees from retaliation even after their FMLA leave expires. The court covers cases out of Texas, Louisiana and Mississippi.

However, employers can still take action against employees for legitimate reasons unrelated to their FMLA leave, courts have consistent held. Earlier this year, the 5th Circuit upheld the termination of a county sheriff’s department employee who was not reinstated after her leave expired.

According to the ruling, a newly elected sheriff decided to replace several supervisors, including the employee. He notified them by email their employment would be ending in two weeks, when he took office. A few days before she was scheduled to be terminated, the employee, who later claimed she never saw the email, was granted FMLA leave. She sued after the county declined to return her to her job.

The 5th Circuit affirmed a ruling for the county, explaining that it was “indisuptably clear” that if the employee had not taken FMLA leave, she would have lawfully been fired weeks before the leave ended.

For an employer defending FMLA retaliation claims, clear, direct and specific documentation is key, attorneys have said. 

For example, in another case out of the 5th Circuit, the court ruled the employer’s “strong evidence” of an HR manager’s poor performance established that her termination — seven days after she returned from FMLA leave — wasn’t in retaliation for taking the leave. The evidence included documentation the HR manager had a performance improvement plan in place before she took FMLA leave. It also included numerous complaints from other employees about her job performance, the court noted.

In the Granbury case, that evidence wasn’t there. Instead, the department head testified the employee had no performance issues and wasn’t normally late to work. Also, the city failed to follow its own policy of progressive discipline, which outlined graduated responses to nonegregious employee misconduct, the 5th Circuit said.

Additionally, the employee’s sudden termination conflicted “with the ordinary reaction to unexpected absences, wherein [the department head] would have contacted Murillo or her emergency contacts,” the court noted. “Such deviations can be evidence of pretext,” it said.