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Including employee’s leave request as reason to fire her was direct evidence warranting trial

By Marjorie Johnson, J.D.

A supervisor’s remark that one of the “several reasons” supporting an employee’s termination was that she “submit[ted] a request for medical leave” constituted direct evidence of FMLA retaliation, as it did more than merely suggest a discriminatory motive but rather was a “blatant remark.” As a result, a federal court in Alabama ruled that the remark itself precluded summary judgment in the employer’s favor, regardless of its contention that she was fired for well-documented performance reasons, since the employee’s estate only needed to show that retaliation was a “motivating factor” and not the “but for” cause of her termination (Stewart v. Wells Fargo Bank, March 14, 2017, Haikala, M.).

The employee was hired by Wells Fargo in March 2012 as a treasury management sales consultant (TMSC). In this role, she developed and maintained business for an assigned customer base in north Alabama and Tennessee. After being interviewed by several team members, she was selected based on her extensive industry experience, and her supervisor was “excited” and “impressed” to have her on his team.

Fails to meet annual goals. By the end of her first year, she failed to meet her annual sales goal, which was apparently not uncommon. Her annual performance evaluation also reflected that she underperformed in other areas of her work, but her supervisor recognized that she had “faced market headwinds with a low starting pipeline, high bank turnover and new BBG leadership” and stated she had “worked very hard.” She also received an end-of-the-year performance bonus.

Formal warning. Her performance worsened during the first quarter of 2013, with her supervisor claiming that he received more complaints from bankers and clients about her work. Due to low sales, she was issued an informal warning, which her supervisor again testified was “not uncommon.” Her performance did not improve, and on June 26 she was issued a formal performance which warned her that failure to improve could result in termination.

FMLA leave. When her supervisor issued the formal warning, the employee asked if she was about to be terminated and explained that she was having health issues that she needed to resolve. Specifically, one week earlier she had been diagnosed with myelopathy after seeking treatment for chronic neck pain, and her doctor had recommended surgery.

On July 8, the employee received a mid-year performance review indicating she was “Off Track” in every category. The next day, she requested FMLA leave for neck surgery, which was swiftly approved. She took five weeks of leave to undergo the surgery and returned on August 26. She was allowed to work with limited responsibilities for two weeks since her supervisor assumed that she was probably “not going to be 200 percent,” but he also warned her that she was still “close to being terminated,” regardless of her medical issues or leave.

Supervisor’s reference to leave was smoking bullet. On October 2, the supervisor sent an e-mail to HR and his boss stating that he was writing to express his “continued concern” for the employee’s performance and that, “I believe we need to move to termination as soon as possible for several reasons.” He then offered a number of performance-based explanations while also adding that termination was justified because “Debby submits a request for medical leave.” His boss replied that he fully supported the termination decision.

The employee was notified of her termination “for continued poor performance” on October 9, just five weeks after she returned from FMLA leave. She was replaced by someone less experienced and Wells Fargo acknowledged that other TMSCs who also failed to meet their annual sales had not been terminated. Three months after filing the instant action, she died unexpectedly after suffering a heart attack. Her son continued to pursue her action as the representative for her estate.

Direct evidence. Wells Fargo was not entitled to summary judgment since the estate established its prima facie case through direct evidence of a retaliatory motive. Specifically, this damning evidence was the supervisor’s statement in his e-mail to HR and his boss that “I believe we need to move to termination as soon as possible for several reasons,” one of which was that “Debby submits a request for medical leave.” And after his superior voiced his full support of her termination, the employee was fired—just five weeks after she returned from FMLA leave. The supervisor’s comment did more than merely suggest a discriminatory motive, it was a “blatant remark.”

Case goes directly to jury. The court squarely rejected Wells Fargo’s contention that the estate was required to show “but for” causation and thus summary judgment was warranted in its favor since it showed she was terminated for poor performance. Neither the Supreme Court nor the Eleventh Circuit has required a showing of “but for” causation in FMLA retaliation claims. Instead, the Eleventh Circuit has applied the “motivating factor” causation standard to such claims.

Accordingly, since direct evidence supported the estate’s FMLA retaliation claim, the burden of persuasion did not shift to Wells Fargo to articulate a legitimate, nondiscriminatory reason for terminating the employee. Rather, the direct evidence of retaliation prevented summary judgment and a jury would decide if Wells Fargo terminated the employee in violation of the FMLA.