The Fifth Circuit Court of Appeals has ruled that the case of an employee fired while on leave under the Family and Medical Leave Act (FMLA) may proceed. The court found that the employee still possessed a right to reinstatement when the FMLA leave began.

In this case, the plaintiff had worked for the employer for 20 years as an engineer and suffered from glaucoma and epilepsy. The employee had consistently positive performance reviews until the year after receiving a new supervisor. Under this new supervisor, the employee received a negative performance review in 2018, which was followed soon after by a final warning from the supervisor related to a part that broke during a testing procedure. The employee was urged by the supervisor to apply for an employee assistance program which they did, and received short-term disability coverage and leave under the FMLA.

However, a short time later, on December 6th, 2018, the employee was informed over the phone that they were being fired as a result of the poor mid-year performance review that occurred back in June and that it was a good time to separate from the company. The employee still had more than five weeks of FMLA leave remaining for the current year and twelve weeks for the following year during which to care for the medical needs of him and his wife, who had advanced-stage cancer.

The employee filed a lawsuit alleging interference and discrimination under the FMLA. However, the district court chose to grant the employer’s motion for dismissal, finding that the employee’s termination was simply an issue of timing and that the rationales for the decision, specifically the poor performance review and the issues surrounding the final warning, were unrelated to the employee’s exercise of his FMLA rights.

The employee appealed, and the Fifth Circuit Court of Appeals reversed the decision. The court examined whether or not the plaintiff had established a dutiable causal link between the termination and the FMLA leave. The court found that this was suitably established by the fact that the employer chose not to fire him at the time of the workplace performance issues but only after two months of FMLA leave had passed. According to the court, this was a suitable indication that the decision was not unrelated to the leave. Further, the employee’s right to reinstatement clearly had not been lost at the time of the leave due to the fact the employer had not informed the employee of his termination until two months into the leave and had even directed the employee to the assistance program. Thus the court reversed the decision and allowed the case to proceed in the district court.

Employer Takeaways

If an employer finds reasonable grounds to fire an employee as a result of poor performance, it should be done at the time that the issue arises. By waiting a significant time and even more so doing it during FMLA leave, this leaves significant room to argue that it is a pretext.