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FMLA cases can hang on suspicious timing, internal documents

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in FMLA Guidelines,Human Resources

The FMLA prohibits employers from interfering with an em­­ployee’s right to take leave or retaliating against an employee for taking leave. In Shaffer v. American Medical Association (No. 10-2117, 7th Cir., 2011), the 7th Circuit Court of Appeals reminded employers they cannot base a termination decision on an employee’s decision to take FMLA leave.   

We first covered this case last month in “Never base RIF decision on FMLA leave status.” This month, we’ll look at some of the lessons it can teach employers.

RIF, surgery, change of plans

William Shaffer worked for the Ameri­­can Medical Association (AMA) as the director of leadership communications. In September 2008, as a result of the economic downturn, the AMA’s Chief Marketing Officer Marietta Parenti directed all department heads to reduce their budgets.

Parenti and Michael Lynch, who was Shaffer’s supervisor, decided to eliminate at least one position in Lynch’s department. On Oct. 28, 2008, Parenti asked Lynch to recommend a position to eliminate.

At the time, Lynch planned to eliminate the position of communications campaign manager, because the AMA had stopped work on one of its main campaigns and the role had changed significantly. Lynch did not plan to eliminate any other positions.    

On Nov. 20, 2008, Shaffer in­­formed Lynch that he would be having knee replacement surgery in Janu­­ary 2009. As a result, he would be taking four to six weeks of leave.

Two days later, Lynch sent Parenti an email stating that Shaffer’s posi­­tion—not the campaign communications manager—should be eliminated. A few days later, Shaffer was informed that his position was eliminated.  

Shaffer sued the AMA, alleging that his termination violated the FMLA. The district court granted summary judgment for the AMA.

Suspicious timing

Shaffer appealed and the 7th Circuit reversed, holding that a jury should have a chance to decide whether Shaffer’s termination was based on his plan to take FMLA leave.

The court held that although Shaffer’s FMLA leave may have had nothing to do with the termination decision, a reasonable jury might find that Shaffer’s exercise of his right to take FMLA leave was a motivating factor in the AMA’s decision.  

The timing, to put it bluntly, was suspicious.

Lynch had decided to terminate the campaign communications position and made no plans to eliminate any other positions. But then a few weeks later, Lynch decided to terminate Shaffer after learning that Shaffer would need to take FMLA leave.

Documentation tells the tale

The AMA’s internal records didn’t help its legal case.

Notably, in Lynch’s email to Parenti explaining his decision to terminate Shaffer, Lynch apologized for his “11th hour change of heart.” He also expressly referenced Shaffer’s leave, stating: “The team is already preparing for Bill’s short-term leave in Janu­­ary, so his departure should not have any immediate negative impact.”  

The court also pointed out other factors that supported Shaffer’s argument. For example, the AMA gave different explanations for Shaffer’s termination at different times.

In addition, after learning of potential litigation with Shaffer in February 2009, an HR representative typed up his handwritten notes relating to eliminating Shaffer’s position. But he backdated the notes to November 2008, and shredded his handwritten notes.

From those facts, the 7th Circuit reasoned, a jury could conclude that the AMA tried to muddy the paper trail.

What employers should do

This case makes clear the importance of providing proper training to super­­visors. They must understand how to comply with applicable laws when they make termination decisions. It’s also critical for them to know how to fully and timely document the legitimate reasons for their termination decisions.

In Shaffer v. American Medical Asso­­ciation, two key factors called into question the motivation behind the AMA’s decision to discharge Shaffer:

  1. The employer’s suspicious timing in terminating an employee shortly after he announced his decision to take FMLA leave
  2. The supervisor’s email that referenced the employee’s leave.

Together, they provided significant evidence that the termination decision was based on the employee exercising his right to take FMLA leave.  

Advice: Always consult with your attorney to ensure that your termination decisions and practices comply with relevant labor and employment laws.

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