Termination after Leave, Performance Accolades Shows FMLA Retaliation

Frank Ferreri

Baltimore, MD (WorkersCompensation.com) – When an employee takes FMLA leave and is terminated shortly thereafter, it could be retaliation or it could be for legitimate reasons.

In Jackson v. Sprint/United Management Company, No. RDB-21-0426 (D. Md. 04/20/22), an employee showed that her termination, which occurred four days after she took leave, was retaliation for exercising her FMLA rights.

A mobile phone company employee had multiple sclerosis, for which she took FMLA leave. The company had a policy under which three consecutive “no-call, no-show” absences were construed as voluntary abandonment of employment, resulting in termination.

The employee had sales goals and received coaching three times for failing to meet her goals, but she also received accolades. Supervisors characterized her as a reliable employee and one expressed interest in hiring her as an assistant store manager. Another supervisor highlighted the employee in two email chains celebrating top sellers for priority devices, and yet another commented that he wished he could “clone” the employee due to her ability to close accounts and build rapport with customers.

According to the employee, two supervisors commented about her illness, disparaged her condition, and referred to her sick days as vacation days. A supervisor asked her, “Why are you always” sick after the employee had been out with the flu.

Shortly after becoming eligible for FMLA leave, the employee applied intermittent leave, which the company approved. However, two weeks later, and four days after exercising leave, the employee was terminated.

In terminating the employee, the company cited attendance and performance issues, including a late arrival when the employee’s dog was injured, a late arrival to pick up a birthday cake, and an incident when the employee left for lunch and did not return.

After her termination, the employee sued, alleging that the company violated her FMLA rights by retaliating against her. Under the FMLA, an employee can show retaliation with close temporal proximity between taking FMLA-protected activity and being subject to an adverse employment action.

The court explained that the employee presented enough evidence to take her case to a jury.

The court pointed out that the timing of the employee’s termination came shortly after she exercised her right to FMLA leave and came after multiple supervisors lauded her performance. The court also highlighted that the employee was not giving a warning or notice before her termination, raising issues as to whether the company’s stated reasons for terminating her were pretext for FMLA retaliation.