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Despite jury verdict for employee, FMLA retaliation claim properly tossed

By Ronald Miller, J.D.

Extensive evidence showed that the administrative assistant failed to meet expectations both before and after her FMLA leave.

Fired for performance reasons, an administrative assistant failed to present sufficient evidence for a reasonable jury to find that her employer’s justification for termination was false and merely a pretext for retaliation, ruled the Fourth Circuit, affirming judgment as a matter of law to the employer despite a jury verdict for the employee on her FMLA retaliation claim. Record evidence showed that she failed to meet expectations both before and after her FMLA leave—in fact, there was evidence her employer at least “contemplated” firing the employee before she took FMLA leave. So, even if the termination decision was only “definitely determined” after the leave, that timing did not establish that FMLA leave was the real reason for the firing. Judge Motz filed a separate dissenting opinion (Fry v. Rand Construction Corporation, July 1, 2020, Richardson, J.).

Performance problems. For more than eight years, the employee worked as an administrative assistant to the CEO of a national commercial general construction contractor. However, in 2016 problems began to surface, and she committed a number of errors and failed to complete assigned tasks. The CEO repeatedly expressed her concerns about the employee’s performance—five times in seven months. In a September 2016 email, she explained that the employee’s job “may [well] be in jeopardy” considering her performance problems.

In November 2016, according to the CEO, the employee caused her to miss a meeting with the company’s largest client. The CEO determined that she wanted to discharge the employee. Less than two weeks later, the CEO rushed through early-morning traffic for a meeting only to find out that it had been changed to a conference call. She blamed the employee for failing to communicate the change and believed that it was time to fire her.

Multiple sclerosis diagnosis. After learning that the CEO was again furious with her, the employee scheduled an appointment with her doctor. Unknown to her employer, she had been diagnosed with multiple sclerosis in 2010. The employee inquired of her doctor whether she qualified for “disability.” The doctor advised her that she lacked the necessary “objective limitation” to be considered disabled.

Four days later, the employee informed her employer about her MS diagnosis and requested two weeks of FMLA leave, which was granted. When she returned to work, she was met with harsh comments from the CEO and was asked if she would be willing to work for another executive. Ultimately, it was determined that there wasn’t enough work to justify a new position.

In January 2017, for the first time, the employee complained to the company’s chief operating officer (COO) about “the discrimination and retaliation” that she suffered at the company. The employee was officially terminated on January 28.

Retaliation claim. Filing suit, the employee alleged that she was fired in retaliation for taking FMLA leave and a jury returned a verdict for the employee, but the district court granted the employer’s motion for judgment as a matter of law, finding that the employer established a legitimate, nondiscriminatory reason for terminating the employee—performance problems that pre-dated her FMLA leave. The employee failed to introduce evidence from which a jury could reasonably find that the employer’s proffered reason was pretext, explained the court, and she appealed.

Pretext problem. On appeal, the Fourth Circuit found that the district court properly granted judgment as a matter of law on the employee’s FMLA claim. Under the McDonnell Douglas framework, to carry her burden of proving retaliation for exercising her FMLA rights, the employer had to “establish both that the employer’s reason was false and that [retaliation] was the real reason for the challenged conduct.”

The appeals court noted that because the employee relied on the McDonnell Douglas framework and its pretext stage requires but-for causation, it did not matter under which subsection of § 2615(a) her claim arose. The employee fell short in putting forth sufficient evidence to allow a jury to find both retaliatory animus and pretext. The employer presented a “lawful explanation” for firing the employee—performance problems. Extensive evidence showed that the employee failed to meet expectations both before and after her FMLA leave.

Between May 2016 and November 3, 2016, the employer documented numerous performance deficiencies. After the employee returned from FMLA leave, confrontations between the employee and CEO about her performance continued. The employee’s evidence—taken in the light most favorable to her—was not enough for a reasonable jury to conclude that the employer’s proffered rationale was false and merely pretext for FMLA retaliation.

Firing already under consideration. Further, the evidence showed that the CEO at least “contemplated” firing the employee before she took FMLA leave. So, even if the decision was only “definitely determined” after the leave, that timing “is no evidence whatever” that the leave was the real reason for the firing. Plus, the employer readily approved her request to take FMLA leave with no indication of hostility. The CEO often expressed her dissatisfaction with the employee’s performance over several months before she took FMLA leave. If anything, the employee’s leave “just delayed the inevitable.”

Dissent. Judge Motz argued in dissent that the evidence did provide a sufficient basis for the jury’s verdict, especially because a trail court’s fact-finding role “differs markedly from its role in deciding a motion for judgment as a matter of law, which may nullify a jury verdict.” According to the dissent, the evidence as a whole was susceptible of more than one reasonable inference. The employer’s theory was that the decision to terminate the employee was made prior to her exercising her FMLA rights. However, the employee’s account was that prior to her FMLA leave, the employer had only been proposing a transition plan that, if accepted, would involve her leaving the company the following summer. Moreover, even if the employer could have fired the employee due to poor performance, that did not mean it would have done so absent her protected activity, noted the dissent. Thus, the dissent argued that a reasonable jury could find that the employee’s termination was “more likely the result of retaliation.”