The old saying “timing is everything” could not be truer than when it comes to handling tricky FMLA and ADA cases. It happens often enough that an employer discovers employee performance problems or misconduct while the employee is on a FMLA leave or is receiving protections under ADA.
It is important to remember that FMLA and ADA do not provide employees with enhanced rights to continued employment. But when you fire someone who is exercising his or her rights under those laws, the optics are problematic. The employer looks bad, even when it has legitimate, non-discriminatory business reasons for firing the employee. It invites employee lawsuits, especially for retaliation. For that reason many employers feel they cannot take any action; however, a recent 11th Circuit court case upheld an employer’s decision to terminate an employee who was on FMLA leave.
Dollar General hired Kimberly Thomas as a store manager in September, 2004. She was responsible for hiring and training employees, managing their schedules, ensuring inventory was properly stocked, and overseeing the cleanliness of the store. In 2006 she requested and received FMLA leave for the birth of her first child. But in December of that year, Thomas was diagnosed with breast cancer. She requested and received intermittent leave through mid-2007, at which point her cancer went into remission.
In 2011, Thomas took FMLA leave for the birth of her second child. But in December of that year she discovered that her cancer may have returned, so she underwent a preventive double mastectomy, taking additional FMLA leave through March 2012. When she called her supervisor to inform her of the need for that leave, Thomas stated her supervisor “seemed frustrated" and informed her that she might not be able to "save" her job.
On November 22, 2011—i.e., just prior to the discovery of the possible return of her cancer—Thomas had
received a “Needs Improvement” performance review, at which point her supervisor placed her on a performance improvement plan. This plan required her to meet specific goals within 90 days or face termination.
In January 2012, while Thomas was on leave, the Dollar General store that she managed was robbed. Thomas’ boss did an investigation following the robbery and two employees confessed that they had not taken a required computer-based robbery prevention learning class. But their training records indicated they had completed the training. After further investigation, Dollar General concluded that Thomas most likely falsified the records and took the computer based training for her employees.
When Thomas returned from her leave on March 14, 2012, she was interviewed regarding Dollar General’s suspicions. She denied taking the computer-based classes for her employees, but admitted that she had instructed the employees to take the classes “off the clock.” On March 28, 2014, Thomas was terminated for falsifying documents and working associates off the clock.
Thomas subsequently filed a lawsuit for discrimination based on her cancer, FMLA interference and retaliation. Her supporting reasons included the timing of the termination decision so close to her return from leave, her denial that she falsified records, and her supervisor’s comments that seemed to indicate unhappiness with Thomas’ medical condition and her use of FMLA leave. Thomas also was able to identify another employee who was investigated for altering an employee’s computer record, but whom they did not fire.
Both the District Court and the 11th Circuit Court of Appeals sided with Dollar General on all counts, granting the company’s motion for summary judgment. It found that the timing of her firing was not discriminatory and not retaliatory; that her denial that she falsified records did not matter because the evidence that she had falsified them was solid; and that her supervisor’s remarks in December 2011 were “at best, stray remarks” that did not create a material issue of fact that could have indicated pretext. Lastly, the other employee who was investigated for falsifying records was never fired because she had been cleared of having tampered with records.
Employers should not be afraid to terminate employees for performance issues or misconduct regardless of the presence of FMLA or ADA in the scenario, as long as they have legitimate, non-discriminatory business reasons for doing so. Of course their documentation needs to be solid, because they will have the burden of proving that FMLA and ADA were not factors in their decision to fire. The timing may make them look bad, but they need to stick to their guns.
Source: Kimberly Thomas v. Dollar General