9 Months Between FMLA Request, Termination Defeats Retaliation Charge

Frank Ferreri

St. Louis, MO (WorkersCompensation.com) – While it’s possible that a termination following a worker’s request for Family and Medical Leave Act leave will show retaliation, the timing must be fairly quick.

As the 8th U.S. Circuit Court of Appeals held in Lissick v. Andersen Corporation, No. 19-3783 (8th Cir. 05/06/21), a period of nine months between a request and a termination was too long to show retaliation based on timing alone.

Safety Protocol, Termination

In the case, a manufacturer had a safety protocol that required employees to turn off power and discharge all power sources from equipment prior to performing maintenance or repairs. Additionally, the protocol required employees to lock equipment in an “off” position before performing repair work or maintenance.

The manufacturer’s policy recommended termination form employees who violated the safety protocol twice. The manufacturer determined that the worker had violated the protocol three times, so it terminated him.

Prior to the termination, the worker took intermittent FMLA leave to care for his sick father. The manufacturer approved the worker’s leave request, and he used it on an intermittent basis for a three-month period. At the time of the termination, the worker was still on approved intermittent FMLA leave.

Thus, when the termination occurred, the worker sued, alleging that the manufacturer retaliated against him for taking FMLA leave. In federal court, the worker came up short, with the court ruling in the manufacturer’s favor.

In turn, the worker appealed to the 8th Circuit.

Causal Connection

Under the FMLA, an employee may establish FMLA retaliation by showing that he experienced an adverse employment action that had a connection to his exercising his FMLA rights. The 8th Circuit explained that while the timing of an adverse action can show FMLA retaliation, courts have held that the timing must be “very close.”

In the worker’s case, the timing wasn’t so close that it demonstrated retaliation on the company’s part.

“[The worker] requested leave time … approximately nine months before his termination,” the court wrote. “The date of termination is too far removed from the date of [the worker’s] leave request to create an inference of causation.”

As a result, the 8th Circuit upheld the lower court’s ruling in the manufacturer’s favor.

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