Evidence Of Employer’s Dissatisfaction Is Sufficient To Forestall Employee’s FMLA Claim

An employee’s documented performance issues and his employer’s concerns about his completion of a project were evidence that the employee’s termination would have taken place independent of the employee’s use of leave under the Family Medical Leave Act (FMLA), according to the Tenth Circuit U.S. Court of Appeals in Brown v. ScriptPro, LLC (No. 11-3293).

Frank Brown was fired by ScriptPro, LLC two days after he requested FMLA leave from his job as a customer service operations analyst to care for his wife and new baby. He filed an action against ScriptPro in district court, alleging that his former employer had both interfered with his FMLA rights and had retaliated against him for requesting FMLA leave. When the district court granted summary judgment to ScriptPro, Brown filed an appeal. The Tenth Circuit upheld the lower’s court’s decision in favor of ScriptPro on both of Brown’s FMLA interference and FMLA retaliation claims.

FMLA interference. The court found that Brown had shown that he was entitled to FMLA leave and that an adverse action (his termination) by ScriptPro had interfered with his right to take FMLA leave, which are two of three elements required to succeed on an FMLA interference claim. The court also conceded that the fact that Brown was fired only two days after requesting time off could be construed as being related to his attempt to exercise his FMLA rights, which would be the third and final element required for an FMLA interference claim, and stated that “timing can be particularly suggestive in determining whether termination relates to the exercise of FMLA rights.” The court added that an employer’s intent with regard to the required elements of an FMLA interference claim is irrelevant.

However, ScriptPro had shown that Brown was to be terminated based on the fact that he had received mixed feedback in his only performance review, and because the problems brought up during the performance review had apparently continued. ScriptPro also had shown that there had been concern about Brown’s failure both to complete a project on time and to correctly finish scorecards for grading customer service calls. The court added that it was not judging the wisdom of ScriptPro’s decision to terminate Brown based on these factors, but was only deciding that it had been shown that Brown would have been terminated regardless of his FMLA leave request. Even though Brown argued that he could show that ScriptPro’s alleged reason for firing him was pretextual, the court declined to do a pretext analysis, reiterating that intent is not necessary for interference claims. The court held that Brown had not submitted any triable issues of fact that would create a genuine dispute regarding ScriptPro’s affirmative defenses, adding that no evidence had shown that ScriptPro had deviated from its usual evaluation process in any way.

FMLA retaliation. The court then explained that Brown’s FMLA retaliation claim was subject to a burden-shifting analysis, (see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)), unlike FMLA interference claims. The court agreed with the district court’s finding that Brown had succeeded in making out a prima facie showing of interference, to wit, that he had engaged in a protected activity, that ScriptPro had taken an action that a reasonable employee would find to be materially adverse, and that there was a causal connection between the protected activity and the adverse action. The burden then shifted to ScriptPro, said the court, to demonstrate a legitimate, nonretaliatory reason for Brown’s termination, which it did by pointing to his unresolved performance issues. Brown then had the task of showing that ScriptPro’s proffered reason was pretextual.

The court said that the temporal proximity of two days between Brown’s leave request and his termination from employment were not enough to show pretext, and that he had to also present circumstantial evidence of retaliatory motive on ScriptPro’s part (see Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164 (CA-10) 2006). Brown attempted to do this by: (1) pointing to an e-mail he received from his former supervisor prior to the termination, stating that the supervisor thought Brown was “safe,” despite the negative comments on his performance review; (2) showing that his performance review had contained some positive evaluations; (3) disputing some of the negative comments ScriptPro had made about him; and (4) adding that his supervisor never sat down after his mixed review to draft a list of performance goals. The court responded, however, that Brown’s former supervisor was not directly involved in his termination, there was sufficient evidence to show that ScriptPro was dissatisfied with Brown’s performance, and ScriptPro had followed its evaluation process and had no formal system in place for working out goals following a negative performance review. There was, therefore, no triable issue of fact with regard to whether or not ScriptPro’s reason for firing Brown was pretextual, and the decision of the lower court was upheld.

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