- A university’s “robust, well-documented collection of non-discriminatory reasons” for firing an employee served as a successful defense to her Family and Medical Leave Act lawsuit (Corkrean v. Drake University, No. 22-1554 (8th Cir. Dec. 13, 2022)).
- The employee, an individual with multiple sclerosis, worked at Drake University as a budget manager for its college of arts and sciences, according to court documents. When a new dean took over, the two met to discuss performance issues, particularly her erratic work schedule, court documents said. She alleged the dean was harassing her about medical-related absences. HR then approved the plaintiff for FMLA leave but she continued to exhibit problems that the school said were unrelated to her leave. It eventually fired her.
- The employee sued, alleging a variety of violations, but a district court dismissed her claims. On appeal, the 8th Circuit agreed with the lower court, emphasizing the employer’s robust documentation, which featured “plethora of performance deficiencies, such as failing to pay staff members the appropriate amounts and missing deadlines, as well as non-FMLA tardiness and attendance problems.”
The FMLA entitles an eligible employee up to 12 weeks of leave during a 12-month period for a “serious health condition.” It also prohibits employers from interfering with an employee’s FMLA rights, or from retaliating or otherwise discriminating against an employee for exercising these rights, according to a U.S. Department of Labor fact sheet.
In Corkrean, the employee acknowledged that she wasn’t denied FMLA leave, so the issue on appeal was whether the university fired her in retaliation for taking it, the 8th Circuit explained. That question turned on whether the employee could show the reasons the university gave for her termination her were a pretext, or cover-up, for retaliation. She failed to do so, the court held.
This was because the university did several key things correctly. First, it kept a “robust, well-documented” record of the employee’s performance deficiencies, according to the 8th Circuit. Second, the university informed the employee “in writing multiple times what she needed to do to improve, and she failed to do so every time,” the court said.
In addition, the university took important steps to comply with the FMLA. Primarily, it separated the employee’s non-FMLA-related problems, including her non-FMLA-related attendance issues, from her FMLA absences. For example, after the dean gave the employee a list of expectations for improvement, the dean emphasized that the university’s attendance concerns (such as taking unauthorized time off to work another job) did not include the employee’s protected FMLA or other medical-related absences.
Also, although the university didn’t formally investigate the employee’s formal harassment complaint — a deviation from its policy — an HR representative promptly met with her to address it. She was given a written list of her FMLA issues and reminded that she would not be penalized for using qualifying FMLA leave. When the HR representative raised the performance issues, she made it clear she was “separating out the FMLA with the performance.” The court noted that, “On this record, we cannot say that Drake’s technical, non-compliance with its harassment complaint policies is sufficient grounds for pretext,” particularly because the university never wavered about why it fired the employee; she didn’t dispute her alleged deficiencies; and an employee who didn’t take FMLA leave was terminated for making similar issues.
A 2020 ruling from the 11th Circuit provides further confirmation that proper documentation is critical for HR: It helped an employer defeat a former account exec’s age discrimination claim. By the time the employee was asked to submit an overdue report, the exec already had mixed performance reviews. He responded in a manner the company viewed as insubordinate, and it fired him. In rejecting his appeal, the 11th Circuit said there was no basis on which a jury could find pretext.