- An Envoy Air employee who was fired a month after returning from Family and Medical Leave Act (FMLA) leave was unable to prove illegal discrimination or retaliation. The 6th U.S. Circuit Court of Appeals affirmed a district court's ruling of summary judgment in favor of the employer in Nieves v. Envoy Air, Inc., No. 18-1127 (6th Cir. Jan. 14, 2019).
- The employee was terminated for abusing his employer's travel policy and he was unable to show that the given reason was illegal pretext, the court said. The plaintiff, Armando Nieves, had been selected for a random audit and could not satisfactorily explain some irregularities on his list of family members who were active travelers.
- Alleged comments about the employee being too ill to work and taking frequent leaves were too vague to create an inference of bias, according to the court.
In general, terminating an employee during his or her medical leave or shortly thereafter is highly risky. After all, suspicious timing alone can create a claim, experts previously told HR Dive.
If a termination is legitimate, however, and there is evidence to support it, an employer may be able to proceed without facing liability. In the instant case, Envoy did a number of things right, particularly when it came to following an established process. First, while it conducted both random and specific audits of employees' travel privileges, it was able to show that Nieves had been selected at random. Second, Envoy waited until Nieves returned from leave to finish up its investigation and ask him the necessary questions. It's important to leave leave-takers alone, Jeff Nowak, a shareholder at Littler Mendelson and Matt Morris, VP of FMLASource, ComPsych Corporation, said at a recent conference. While it may sometimes be necessary to reach out to an employee on leave with an important question, such occasions should be rare and handled with care, they said.
Good documentation helped Envoy succeed as well. An HR representative's notes taken during the audit proved invaluable, demonstrating that documentation is an integral part of so many employer compliance efforts.