The Seventh Circuit Court of Appeals, in Anderson v. Nations Lending Corporation, has ruled that an employer’s decision to terminate an employee after returning from FMLA leave did not violate the FMLA because the employee would have been terminated for job performance issues regardless of whether she took FMLA leave.
Law. The FMLA provides employees with two types of causes of action against employers. First, its “retaliation” provisions prohibit employers from discharging or discriminating against employees for “opposing any practice made unlawful” by the FMLA. Second, the FMLA’s “interference” provisions make it unlawful for an employer to interfere with, restrain, or deny the exercise of, or an attempt to exercise, any right provided by the FMLA.
Background. Throughout the first year of employment, the plaintiff exhibited performance deficiencies in her work. Although the plaintiff never received formal warnings, she continuously required ongoing training from her supervisor to address her mistakes.
After experiencing health issues and using her available sick time for extended leave, the plaintiff returned to work, but her job performance continued to decline. Her supervisor questioned her about certain additional mistakes that were discovered while she was out, but she could not recall much detail about these errors. While the plaintiff promised to be more careful in her work, her supervisor created a spreadsheet to track these mistakes after further errors were discovered.
The plaintiff continued experiencing health issues which required her to take FMLA leave. Before she took her FMLA leave, the plaintiff’s supervisor commented that she was “sick a lot” and that they needed a “full team to run her department.” While the plaintiff was on FMLA leave, the employer discovered additional errors in her work. Upon discovering these additional errors, the plaintiff’s supervisor recommended that her employment be terminated due to poor performance and because the quality of her work was inconsistent with her purported 20 years of experience in this field. In response, the employer launched an investigation into the plaintiff’s job performance.
Before the conclusion of the employer’s investigation, the plaintiff returned from FMLA leave. Although her job typically involved reviewing loans, she was not assigned any new loans to process. Instead, she was instructed to review her emails, resolve computer issues, and complete training modules. After completing its investigation, the employer terminated the plaintiff.
District Court. In response to the termination, the plaintiff sued the employer in federal district court, claiming violations of the Americans with Disabilities Act and interference and retaliation under the FMLA. The district court dismissed all of the plaintiff’s claims, and the plaintiff proceeded to appeal the court’s ruling on the FMLA claims only.
Seventh Circuit. On appeal, the Seventh Circuit rejected the plaintiff’s FMLA interference claim, concluding that the plaintiff had been restored to the same position upon returning from FMLA leave. The court observed that asking an employee to catch up on missed emails, directives and trainings “amounts to the sort of ‘make-work’ that might indicate an intent to sideline or ‘warehouse’ an employee permanently.” The court also noted that in light of the employer’s ongoing investigation into the plaintiff’s subpar job performance, the employer had sufficient grounds for not assigning the plaintiff new loans for review upon her return from FMLA leave.
The Seventh Circuit further rejected the plaintiff’s claim that her termination was pretextual. Specifically, the court explained that, despite the FMLA protections, an employee is not entitled to remain in her prior position if she would have been terminated regardless of whether she took FMLA leave. The court noted that the record reflected the plaintiff never contested the employer’s issues with her work and that her supervisor began tracking her mistakes months before she took her FMLA leave.
The plaintiff had also asserted that the timing of her firing demonstrated that the termination was retaliatory. However, the court observed that the employer began tracking the plaintiff’s mistakes well before she went on FMLA leave, and discovered additional errors while she was on such leave. In addition, the court noted that “[w]aiting to confirm the results of the investigation supports a finding that the [employer] terminated the [plaintiff] based on performance,” and not as retaliation for taking FMLA leave.