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The Challenge of Proving FMLA Retaliation with Performance Issues


Practically every employment retaliation case requires an employee to show that the adverse employment action they claim to be retaliatory was not based on legitimate, non-retaliatory reasons. To put it another way, if you claim you were terminated because you took FMLA leave, the fact that you have legitimate performance issues unrelated to your FMLA leave will make it more difficult for you to prove your case. A recent Eighth Circuit case demonstrates how real performance issues can be detrimental to an FMLA retaliation claim.

Protections Not Afforded by the FMLA

While the FMLA prohibits an employer from taking adverse employment actions against an employee because that employee has taken FMLA leave, the statute does not provide employees with any greater protection against termination, when that decision is based on reasons that are unrelated to the FMLA. Furthermore, courts have repeatedly ruled that the FMLA is not “a general civility code for the American workplace.”

A Surgical Technician with Performance Issues Claims FMLA Retaliation

In a recent case reviewed by the Eighth Circuit Court of Appeals, Beckley v. St. Luke's Episcopal-Presbyterian Hospitals, a surgical technician who required intermittent FMLA leave received multiple disciplinary actions and was ultimately terminated. She alleged that her disciplines along with several comments made to her about her FMLA leave were all retaliatory in nature. Beckley was employed with the defendant hospital since 1995. In October 2012, she was promoted to a full-time position in the Operating Room Department, which required her to have on-call shifts. At the time she was promoted, she was already on intermittent FMLA leave and it was known that she would need to take additional leave.

Beckley was reprimanded on several occasions because she failed to properly respond to emergency call-in requests when she was scheduled for an on-call shift. Beckley admitted those reprimands were unrelated to her intermittent FMLA leave. In addition to the formal reprimands, Beckley was counseled about other performance issues such as being inattentive to details, the need to focus more during surgical procedures instead of talking. Again, Beckley admitted these work performance issues were unrelated to her FMLA leave.

Beckley’s Claims of FMLA Retaliation

Despite her admitted performance issues, Beckley alleged in her lawsuit that the issues with her work performance were the result of her intermittent FMLA leave. She also alleged that certain comments demonstrate retaliatory motive. For example, one of her co-workers told her that she “needed to watch herself” because of her FMLA usage. A supervisor also asked her if she could schedule doctor’s appointments during off-duty hours, which Beckley saw as a complaint about her FMLA leave usage.

Appellate Court Does Not Find Evidence of Retaliatory Conduct

The Eighth Circuit Court of Appeals determined that Beckley had already been using FMLA leave on a repeated basis with no negative consequences for nearly two years. Other than the disciplines for failing to follow on-call procedures which she admitted were not related to her FMLA, the other actions she complained of were not tangible injuries and not actionable under the FMLA. Instead, those complaints involved the type of “petty slights or minor annoyances,” the Supreme Court has held may be frustrating to an employee, but do not give rise to a cognizable FMLA claim.

If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King . You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!

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