Petra Fenton-Spaid nearly laughed when she heard she was being fired for violating a policy that no one had ever paid attention to until now. “I don’t know whether to curse you or thank you,” Petra told her boss, Hedi Lowe. “You’re actually firing me on a trumped-up charge six days after I applied for medical leave. The is against FMLA law—you must really want me to sue you!”

Hedi shook her head. These conversations were never easy. “You’re wrong,” said Hedi. “Schramm Auto Rental doesn’t want you to sue us, but I’m 110% confident that if you do, you won’t stand a chance in court. This is not an issue of FMLA law.”

Credit-card investigation

Petra disagreed. “I don’t think that a judge would believe your sham investigation. Come on, Hedi. Everyone knows about this company’s gas-card policy. We’re not supposed to use the gas cards for personal use. But everyone around here uses them to fill their own tanks once in a while – and you know it!”

“Petra,” said Hedi, “When Dan Cleary began investigating gas-card abuses, he didn’t even know that you’d applied for FMLA leave. Really. He didn’t. The fact is, we’re going after the gas-card violators like we’ve never done before. It was a coincidence that we happened to catch you first.

But your leave request isn’t like a free get-out-of-jail card. When a judge looks at our timeline he’ll see that your dismissal had nothing to do with your request for medical leave.”

Petra claimed that her employer was using the policy selectively to get rid of her because she had requested a two-month FMLA leave.

The company insisted that the executive who launched the investigation and enforced the policy didn’t know about Petra’s leave request, or that FMLA law was involved at all, at the time that he enforced the policy.

Petra filed a lawsuit claiming she was fired in retaliation for requesting FMLA leave. Did she win?

The decision

Yes. Petra’s claim survived summary judgment. It will be up to the employer to defend itself against her allegations of FMLA law violation when the case moves on to the next stage. Or the company may offer Petra a settlement.

Whichever scenario plays out, it will cost the employer time and money. But it didn’t have to be that way. If this employer had enforced its own policy evenhandedly, Petra’s dismissal would have been totally legitimate, and no FMLA law violation would have been suggested.

Proving a causal connection

First, we’ll take a look at how the court reached its decision. Then we’ll make a recommendation for employers who want to avoid FMLA law suits.

In this case, the employer argued that Petra couldn’t prove a causal connection between her dismissal and her protected activity (requesting FMLA leave). But the judge noted that Petra didn’t have to prove a causal connection. All she had to do at this stage was show enough evidence of retaliation so that the average person could infer that the gas-card complaint was a pretext for illegal discrimination. The court was swayed by the fact that no other workers had been investigated for violating the gas-card policy, despite evidence that the policy was routinely abused.

Forget about timelines: Selective policy enforcement always looks suspicious – even if the enforcer didn’t know that the employee was engaged in a protected activity. If it doesn’t look right to the average person, it won’t look right to a district court.

Cite: Carter v. Enterprise Rent-A-Car, U.S. District Court, Northern District of IL, Eastern Division, No. 01-CV-4494, 7/29/02. Fictionalized for dramatic effect.

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