Did boss create paper trail to cover FMLA retaliation?

“As I already told you, we terminated Georgia Minsky because we needed to eliminate a position. Hers seemed like the logical one,” supervisor Tom Schmidt told plaintiff’s lawyer Justin Case.

“I heard you say that,” Case said. “But hadn’t you initially decided that a different position was the one to eliminate, and you changed your mind only after Ms. Minsky requested six weeks of FMLA leave?”

“I changed my mind, yes,” Tom said. “But I don’t like your implication that it was because of Georgia’s leave request. I reviewed the matter and decided it would be less disruptive to the department to let her go than Larry Butts, after all.”

What he said
“Just to refresh your memory, here’s your e-mail to your own manager,” Case said, unfolding a computer printout.

“You say, ‘The team was already preparing for Georgia’s leave, so her definitive departure shouldn’t have any immediate impact.’ Sounds like you were taking her leave into account in your decision.”

“But let’s put that aside and look at the notes you typed up about your meeting with your boss where you discussed terminating my client,” the lawyer said.

“These notes are dated two days before she made her request,” Case went on.

Backdated?
“But neither your calendar nor your boss’s reflects a meeting between the two of you on that day. Isn’t it true that you typed up the notes weeks later, after my client filed suit, and backdated them to create the false impression that the termination discussions started before she requested FMLA leave?”

“My calendar doesn’t reflect every meeting I have,” Tom said. “Things come up and you have to deal with them. I did type up the notes later, but I had no intention of deceiving anybody about when the meeting happened. Or about the reasons for terminating Georgia.”

Did Georgia win her FMLA retaliation case?
The verdict
Yes, Georgia got the court to agree that her case was worthy of going to a jury. That represented a defeat for the company, which had to decide whether to go to the expense of a jury trial or instead settle the suit out of court.

The court said that the uncertainty over the timing of Tom’s notes and the date of the meeting suggested that he might have been trying to create a paper trail.

And the e-mail about the change in which position to eliminate supported Georgia’s claim that her request for leave did lead to her termination. Both the e-mail’s timing – immediately after she asked for leave – and its content might look dubious to a jury, the court said.

Cite: Shaffer v. American Medical Association, No. 10-2117, 3rd Cir., 10/18/11.