Dive Brief:
- A former cybersecurity VP for the NBA’s Brooklyn Nets sued the organization on Wednesday, alleging that he was unlawfully terminated 16 days after returning from parental leave.
- The plaintiff in Whalen v. Brooklyn Nets, LLC took two periods of leave under both the Family and Medical leave Act and New York’s Paid Family Leave law. Upon his return, he claimed that a supervisor “received him with uncharacteristic hostility” and issued his first negative performance review during his time with the team before firing him.
- The FMLA prohibits employers from, among other things, discriminating or retaliating against employees who take FMLA-protected leave. However, past court rulings have shown that thorough documentation of an employee’s performance issues may be a defense against FMLA claims.
Dive Insight:
Courts may consider the temporal proximity between an employee’s discipline or termination and their leave or leave request to be relevant when assessing FMLA claims. In Whelan, the plaintiff alleged that he received his negative review just nine days after returning from leave and that his supervisor repeatedly refused to speak with him upon his return.
The plaintiff characterized the negative review as “sudden,” claiming that two prior reviews completed before he took leave showed that he was meeting expectations. He also alleged that, during his leave, the Nets removed him from a list of employees scheduled to attend an NBA conference “without prior discussion with him and without explanation.”
In an email to HR Dive, Marissa Shorenstein, chief operating officer for the Nets’ parent organization, Brooklyn Sports & Entertainment, denied the claims. “BSE is committed to a workplace free from discrimination,” Shorenstein said.
Performance review disputes have featured in several recent FMLA lawsuits. In April, a proposed class-action lawsuit against Deloitte alleged that the company failed to take employees’ pregnancy-related and parental leave into account when completing annual reviews. A plaintiff in the case alleged that she was terminated for her performance after receiving low ratings in the years following her use of leave. The case remains in litigation.
In 2024, the 7th U.S. Circuit Court of Appeals held that employers may unlawfully interfere with an employee’s FMLA rights when they fail to adjust performance standards to avoid penalizing employees who take leave.
Documentation of performance issues can serve as a defense against such claims. The 9th Circuit held in 2019 that an employer did not discriminate against an employee who received negative reviews and was fired less than three months after she requested to take FMLA leave. The reviews dated back to before the employee’s leave request and documented issues such as lateness, failure to attend meetings and lack of communication.
