If you were the judge: Employee’s performance review referred to FMLA-covered absences

Here’s a scenario based on a real-life employment law case. How do you think the court ruled?

“So according to you, why exactly did you terminate my client, Ruth Yoakam?” plaintiff’s attorney Justin Case asked supervisor Alita Jones.

“Ruth had been in her position for many years, and we felt it was time for a change,” Alita replied.

“Was her performance deficient in some way?” Case pressed on.

“Well, mostly we felt we needed somebody with a broader range of skills,” Alita said. “This position is the only support person in the office, and Ruth’s abilities were limited. She could type and file, but she wasn’t too good with computer and Internet technology.”

A hidden reason?
“That’s interesting,” Case said. “But I’m going to suggest another reason for my client’s termination.”

He put on wire-rimmed glasses and consulted a sheaf of papers. “I’m reading now from her performance evaluation two years ago,” Case said. ” ‘Although Ruth has had an excellent record in the past, she utilized 39 days of sick leave in the year under review.’ ”

“Then in the following year,” Case went on, turning to the next page, “I see that you denied her a merit raise and you specifically mentioned her absences when she asked why.

“And here in another evaluation you wrote: ‘On occasion, I have been concerned with office and phone coverage. Ruth had numerous doctor’s appointments the past year.’ ”

A legal right
Lowering the papers, Case asked, “Isn’t it true that all Ruth’s sick days and time off for doctor’s appointments were covered by FMLA leave?”

“I believe so,” Alita said.

“But you penalized her in her review for taking FMLA leave, even though she had a right to do so,” Case said.

“No. I simply pointed out that her frequent absences affected her performance,” Alita countered. “As I said, she was the only support person in the office, and when she wasn’t there, it hurt our ability to function.”

The employer had asked the judge to dismiss the lawsuit. Now Case turned to the judge. “Your honor, you’ve just heard an admission that my client’s employer illegally interfered with her right to FMLA leave,” he said.

Did Ruth’s case go forward?

The Decision
Yes, the court refused to throw out Ruth’s lawsuit. This left her former employer with the unappetizing choice of settling with her out of court or paying even more in legal fees to continue defending itself.

Supervisor Alita made a serious mistake when she referenced Ruth’s FMLA absences in discussing her performance.

The court said a jury might well decide from Alita’s memos that the supervisor’s “frustration” about Ruth’s leave influenced the decision to terminate her. And that would be a violation of the FMLA.

Action steps
To avoid interfering with employees’ FMLA rights, do not:

• Make slighting comments about those who take FMLA leave.
• Ask employees who have asked for FMLA leave whether they really need it.
• Discuss employees’ FMLA leave in the context of performance.
• Threaten unfavorable consequences for taking approved FMLA leave.

Cite: Goelzer v. Sheboygan County, WI, No. 09-2283, 7th Cir., 5/12/10.