Pension & Benefits News Employee’s documented poor performance doomed FMLA interference, retaliation claims
Friday, November 6, 2020

Employee’s documented poor performance doomed FMLA interference, retaliation claims

By Pension and Benefits Editorial Staff

Affirming the grant of summary judgment against the employee’s FMLA claims, the Fifth Circuit in an unpublished decision concluded that the evidence was insufficient to demonstrate the employer’s proffered reason for his termination was pretextual. Although the employee argued that his performance was satisfactory, the evidence was consistent that the employer’s unfavorable perception of his work was the reason for his termination rather than retaliatory animus.

Performance concerns. The employee worked for Direct Energy GP, L.L.C., as a financial director. His supervisor was never satisfied with the employee’s job performance. On numerous occasions, the supervisor chided the employee for issues with his work and made it clear that his performance needed to improve.

Parental leave. The employee announced that his wife was expecting the couple’s third child but had not thought about taking any time off for the birth of the child. About a month later, the employee mentioned to his supervisor that he "might" take some time off, but that he was not sure of the timing or duration of any leave. He inquired about the company’s leave policies. An HR representative confirmed that the employee may be eligible for unpaid FMLA leave and Direct Energy’s parental leave policy. The representative gave the employee copies of the policies and advised him to contact MetLife, the third-party benefits administrator, for more details. Believing that both leaves were unpaid, the employee did not follow up with a leave request.

Confusion over pay. Meanwhile, the supervisor reached out to the HR department to discuss his continued concerns regarding the employee’s performance and inquired about approval for termination. Some days later, the employee’s baby was born and he took a couple of weeks off. Once the employee learned that FMLA leave and parental leave could be taken concurrently and that he could receive 80 percent of his salary for up to 12 weeks, he decided that was what he wanted to do.

Upon messaging with his supervisor about the potential for leave, the supervisor responded, "I wouldn’t advise that, taking 3 months." According to the supervisor, he thought the employee was talking about taking three months of vacation time. However, when he realized the employee might have been asking about taking leave, the supervisor emailed the employee the next morning that the applicable leave was at 80 percent pay and that he could confirm if the employee was interested. He also continued to discuss the employee’s poor performance with HR and provided supporting documentation. Subsequently, HR approved the supervisor’s decision to fire the employee.

Intermittent leave request. Following his return to work, the employee called MetLife for the first time to request FMLA leave. One week later, the supervisor informed the employee that would be terminated because his performance had not improved. That night, the employee called MetLife about his leave request. He asked if he could take the 12 weeks of leave intermittently and, if so, whether that would give him job protection for a full year. The next day, MetLife confirmed that the employee could take FMLA child-bonding leave intermittently and formally approved his request. The employee did not notify any of his managers about his leave approval or take any FMLA leave before his last day with the company.

Termination and lawsuit. A few months later, the employee filed suit against Direct Energy alleging FMLA violations. He claimed that the company interfered with his attempts to take FMLA leave and then fired him in retaliation. The parties filed cross-motions for summary judgment. The district court granted the motions, dismissing all claims, and the parties appealed.

Offered to help secure leave. Initially, the court examined the employee’s interference claim. He argued that his supervisor discouraged him from taking the full three months’ leave. Specifically, the employee pointed to the supervisor’s message, "I wouldn’t advise that, taking 3 months." However, the court found that the full text of the conversation showed that the supervisor affirmatively tried to help the employee secure the three months’ leave the day after he sent the message. Moreover, despite the supervisor’s comment, the employee requested 12 weeks of intermittent child-bonding leave, and MetLife approved the request in full.

Notice of rights given. The court also rejected the employee’s argument that the company interfered with his FMLA rights by requiring him to perform work during the two weeks of paid time off that he took after the birth of his son. Giving employees the option to work while on leave does not constitute interference so long as it is not a condition of employment. Although the supervisor asked the employee to complete some minimal tasks while he was at home, the employee never expressed any reservations about doing so and it was not presented to him as a condition of employment. In addition, the employer properly gave notice to the employee of his eligibility to take FMLA leave.

Pretext? Next, the court turned to the employee’s FMLA retaliation claim. The company offered evidence that it fired the employee based on his poor job performance. Citing his recent bonus and raise, the company’s failure to follow its progressive discipline policy before firing him, and his supervisor’s comments, the employee argued that the stated reason for his termination was merely pretext for retaliation.

Perceived poor performance. The court was not persuaded. Rather than showing only showing good performance, the court noted that the employee’s review included parts that were critical of his work. Indeed, the review said that he "must improve." Further, the employee’s bonus and raise were tied to performance before the review. The decision to fire the employee, however, was based on his failure to improve after the review. Likewise, the court repudiated the employee’s reliance on the company’s progressive discipline policy. The employer’s policy clearly stated that a supervisor could combine or skip steps depending on the facts of the situation.

Never informed of intention. Finally, the court considered whether comments made by the supervisor were indirect evidence of pretext. The employee alleged that the supervisor told a coworker that the employee was "taking advantage of the system" by trying to take more time off for his newborn son. Yet, at the time the comment was allegedly made, the supervisor did not know that the employee intended to take FMLA leave as opposed to paid vacation time. Therefore, the comment did not suggest retaliatory animus. Besides, the court continued, even if the supervisor knew the employee intended to take FMLA leave, that comment alone was insufficient to show pretext.

SOURCE: Park v. Direct Energy GP, L.L.C., (CA-5), No. 19-20878, October 19, 2020.

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