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Court provides FMLA guidance in termination case

Not surprisingly, the Family and Medical Leave Act (“FMLA”) often creates frustrating situations for employers.  Perhaps one of the most frustrating is when an employer discovers an employee’s misconduct just before or while the employee is on a FMLA leave.  These situations leave employers perplexed about how to proceed—will taking appropriate disciplinary action appear to be interference with or retaliation for the employee’s FMLA leave?

The Sixth Circuit Court of Appeals recently provided some legal–and practical—guidance for employers in Donald v. Sybra, Inc., Case No. 10-2153 (6th Cir. January 17, 2012).

What happened?

Plaintiff Gwendolyn Donald worked for the Defendant Employer, Sybra, an Arby’s restaurant franchise.  In mid-February 2008, Donald’s supervisor, Kyle Plum, discovered discrepancies in her drive-in window receipts. Plum believed that Donald was receiving payment at full price, then modifying the receipts to show a discount—and pocketing the difference.  Plum notified his supervisors and then investigated by observing Donald take drive-in window orders for several days.  After confirming his suspicions, Plum notified his supervisor, who decided to confront Donald.

Before that meeting could occur, however, Donald notified Plum on February 26th that she would be off work until February 29th because of pain from kidney stones.

On Donald’s first day back to work on February 29th, Plum and his supervisors confronted her regarding the shortages and the investigation. When Donald denied any wrongdoing and refused to concede the theft, the Employer terminated her employment.

What happened next?

Donald sued the Employer alleging, among other claims, that her termination interfered with and was in retaliation for taking FMLA leave. The district court for the Eastern District of Michigan applied the McDonnell Douglas framework—typically used in Title VII discrimination and retaliation cases–to analyze Donald’s FMLA claims.  Courts have been split over whether use of that standard is appropriate in FMLA cases.

Applying the McDonnell Douglas framework, the district court assumed Donald could establish a prima facie case of FMLA interference and retaliation. The Employer met its burden of showing a legitimate, nondiscriminatory reason for terminating Donald by providing her cash register receipts and order irregularities.  The last step in the analysis required Donald to show that the Employer’s explanation was not the true reason for the termination, but rather a pretext for its unlawful interference and retaliation.  To show pretext, Donald pointed to the timing of the termination—which occurred on the day that she returned from a medical-related absence.

In dismissing the case, the district court concluded that Donald could not establish pretext based on the timing alone.

Donald appealed.

What happened on appeal? 

The Sixth Circuit Court of Appeals agreed that the McDonnell Douglas standard was appropriate for analyzing both FMLA interference and retaliation claims. The Circuit Court further agreed that the timing of the termination did not establish that the Employer’s explanation was a pretext.  Although the Circuit Court conceded that the timing did give it “pause,” the court noted that February 29th was Donald’s first day back at work after the investigation concluded.  Affirming the dismissal, the court concluded that temporal proximity cannot be the only basis for finding pretext.

Guidance for employers

This case provides some important legal–and practical–FMLA guidance for employers.

First, from the legal perspective, the case clarifies that in the Sixth Circuit (Michigan, Ohio, and Kentucky) the well-known McDonnell Douglas standard is the appropriate framework for analyzing FMLA interference and retaliation claims.

Second, from a practical perspective, this case demonstrates that employers must be aware that taking disciplinary action after a medical-related absence or leave can be risky—even when a legitimate reason exists.  Employers that discipline or terminate in such circumstances should have solid evidence, like the employer in Donald v. Sybra, that its actions were related to the employee’s conduct and not the medical condition or leave of absence.  Timely documentation of misconduct and investigations is one way for an employer to establish the legitimate, non-discriminatory reasons for its actions.