Firing After FMLA Leave: How Soon is ‘Too Soon’?

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 her FMLA leave. Six weeks is like a nano-second on the retaliation stop watch. But the court still dismissed the case. Why?

Case in Point: Dynetta Cole worked as a receptionist in the Illinois Governor’s Office of Citizens’ Assistance responding to constituent letters, copying and filing mail. She was, by her supervisor’s account, a poor performer. Her boss had received many complaints from co-workers about Cole’s frequent absences and personality clashes. E-mail exchanges illustrated some of these conflicts.

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 and weekly progress reports, have good attendance and engage in better listening and filing skills. Cole refused to sign the PIP.  Her supervisors warned her twice that if she didn’t sign, she’d be terminated. She still refused and she was fired.

Cole sued under the FMLA claiming she was retaliated against for exercising her rights under the law. The employer 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. (Cole v. Illinois, 7th Cir., 4/7/09)

What happened next and what lessons can be learned?

Solid documentation saved the day. The court sided with the employer and dismissed the case. The judge also said that providing status reports under the PIP was not an unreasonable request or direct evidence of retaliation. In fact, the court said the PIP could be seen as “a constructive assignment that, when executed, could improve an employee’s work habits and productivity.”

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.”

3 Lessons Learned … Without Going to Court

1. Mind the retaliation stopwatch. Courts will look closely to see how much time has lapsed between protected leave and a termination. As stated above, six weeks is nothing on the retaliation stop watch. The employer may have won this case, but it still lost time and money defending it. It’s risky to not mind the retaliation stopwatch.

2. “Leave” really means “leave them alone.”
Again, this retaliation claim could have stuck because one of Cole’s supervisors called her while she was on leave and told her to return because work was “piling up.” When employees are on leave, leave them alone.

3. 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 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. Remember, this case ended up in court, not a place you ever want to see or be seen.