- An employer's "strong evidence" that an HR manager was let go for poor job performance was enough to prove that her firing wasn't in retaliation to her Family and Medical Leave Act (FMLA) leave, the 5th U.S. Circuit Court of Appeals has ruled (Gomez v. Office Ally, et al., No. 18-CV-1101 (5th Cir. March 3, 2020)).
- Margarita Gomez was an HR manager until Office Ally fired her seven days after returning from the FMLA leave she took to care of her mother, the court said. She sued, making several claims under the FMLA and Texas law. The district court ruled for Office Ally on all claims. On appeal, Gomez contested only the FMLA retaliation claim and a claim under state law.
- The 5th Cir. affirmed the trial court's ruling. The court said the employer had presented "strong evidence" supporting its decision to fire Gomez, noting Gomez had a performance improvement plan in place before she took leave and that "numerous employees had filed complaints about her job performance." When it was time for Gomez to return from leave, one manager told the company CEO that Gomez had discussed an employee issue on the speakerphone while other people were in the office and that other managers had similar experiences and complaints, the trial court said in its order for summary judgment. The appeals court also noted that other employees had taken FMLA leave without negative consequences and that the CEO had encouraged Gomez to take leave.
Generally, documentation can make or break an employer's defense when taken to court over bias or retaliation claims. In a similar case, Nike recently prevailed in a lawsuit brought by a former employee alleging retaliation against her harassment complaints because it was able to show that a "clear pattern" of performance problems existed before she engaged in protected activity.
Court rulings show it's important for employers to document adverse employment actions such as firings and demotions. But documentation alone isn't enough, Alison West, principal at Employment Practices Specialists previously said at a conference. It has to be done right. HR must ensure that records are clear, direct and specific. West suggested managers be provided with training on the most common employer documentation mistakes, such as lack of documentation, vague entries, unclear expectations and sarcasm.
HR may also want to review plans to discipline an employee who has recently engaged in a legally protected activity. Employers should understand, for instance, that an adverse employment action undertaken in close temporal proximity to protected activity can lead to an inference of causation. However, that inference can be overcome if the employer has a legitimate, non-discriminatory reason for acting.