Mindy Chapman, Esq., Mindy Chapman & Associates

Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law monthly newsletter. She is highly regarded for her workplace compliance training that “clicks and sticks,” because it is practical and memorable. She is also the coauthor of the American Bar Association’s bestseller and authority on civil rights training, “Case Dismissed! Taking Your Harassment Prevention Training to Trial."

The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally. She has trained extensively in all industries at all levels of the workforce—from boardroom executives to managers and supervisors and to hourly employees in union and non-union environments.

View all articles by Mindy Chapman, Esq., Mindy Chapman & Associates

Do employees who return from job-protected leave become “untouchable,” even if they perform poorly? Can holding their feet to the performance fire look like retaliation?

In this new case, an employer fired a worker just six weeks after she returned from FMLA leave. Six weeks is like a nanosecond on the retaliation stopwatch. But the court still dismissed the case. Why?

Case in Point: Dynetta Cole worked as a receptionist in the Illinois governor’s office responding to constituent letters and filing. Her boss received many complaints from co-workers about Cole’s frequent absences, personality clashes and poor work.

After a car accident, Cole went out on FMLA leave for a month. About six weeks after she returned, Cole’s supervisors gave her a performance improvement plan (PIP). It required her to provide daily progress reports, have good attendance and engage in better listening and filing skills.

Cole refused to sign the PIP. Supervisors warned Cole that if she didn’t sign it, she’d be fired. She didn’t, so she was.

Cole sued, claiming she was retaliated against for exercising her FMLA rights. The state defended its actions by pointing to its paper trail that showed Cole was a poor performer before she went on leave and still was when she returned.

The result: Solid documentation saved the day. The court sided with the employer and dismissed the case. The judge also said providing status reports under the PIP was not an unreasonable request or evidence of retaliation.

The court noted that, “Cole was not deprived of responsibility, hours, pay or any other relevant accoutrement of her position. Indeed, not everything that makes an employee unhappy is an actionable adverse action.” (Cole v. Illinois, 7th Cir., 4/7/09)

2 lessons learned

1. Mind the retaliation stopwatch. Courts will look closely to see how much time has lapsed between protected leave and a termination. Six weeks is nothing. While this employer won its case, it still lost time and money defending itself.

2. Pick your battle plan. If an employee refuses to sign a PIP, consider writing in her file, “Presented PIP to employee who refused to sign.” Then, stick to the improvement plan. If you are looking to minimize the risk of litigation, it’s safer to terminate an employee who underperforms than to fire one for failing to sign the PIP.