- Humana has agreed to pay $500,000 plus attorneys’ fees and costs to settle a lawsuit filed by an employee with excellent performance reviews who was terminated shortly after returning from Family and Medical Leave Act leave (Jenkins v. Humana, Inc., No. 16-cv-6680 (D.N.J. Mar. 8, 2019)).
- Upon announcing her pregnancy, Kate Jenkins was questioned by her supervisor about how much maternity leave she planned to take, and who would watch the baby when she returned to work, according to the original complaint. The employee also claimed she previously overheard management officials commenting on how many employees were taking FMLA leave and how this was "hurting the company."
- After returning to work, Jenkins' supervisor canceled a meeting designed to bring her back to up speed, as well as other meetings. After about two weeks, Humana fired her, citing violations of its "critical offenses policy." Jenkins' complaint alleged the reason offered was pretext for discrimination.
While fact-specific questions about this complaint remain, it offers some lessons for other employers. Prior to her termination, Jenkins allegedly had never received notice of any performance problems, or been subject to progressive discipline or a performance improvement plan. In fact, she was repeatedly commended for her performance and promoted a few times; she also was selected for management and leadership programs.
And while good employees can certainly commit isolated acts that warrant termination, employers will need strong documentation to overcome a good performance history and temporal proximity to protected activity, such as exercising one's FMLA rights. After all, timing alone can establish a prima facie case of retaliation, according to experts.
Discussions that disparage the use of FMLA are a problem, too. Leadership must know to keep their emotions in check, Jeff Nowak, a shareholder at Littler Mendelson P.C., advised attendees at a conference last year. Managers need to know they may not make clear that they're unhappy with leave-takers, he said.
While no system is failsafe, it's a good idea for HR to review high-risk terminations — those involving employees in protected groups, or who have recently engaged in protected activity, or that seem out of left field for some reason — to ensure that all appropriate steps have been taken. Additionally, managers should be trained on the importance of progressive discipline and detailed documentation.