“Stella Gagliardi’s request for FMLA leave wasn’t why I terminated her,” supervisor Mark Crenshaw told plaintiff’s attorney Sue Moore. “I resent your implication that it was.”

“It does look awfully suspicious,” Moore shot back. “You yourself admitted that you fired my client just three weeks after she had the car accident that necessitated her FMLA leave.”

“Yes, but that was pure coincidence,” Mark said. “I decided to terminate Stella right after a meeting I had with her, where we discussed her compliance – or rather, her non-compliance – with her performance improvement plan. That meeting took place before she had her car accident – earlier that same day, in fact. We waited three weeks to tell her because that was when she returned to work.”

The reasons
“So, if you decided to fire Ms. Gagliardi as a result of your meeting, you must have made notes during the meeting, or right after, explaining your reasons,” the lawyer suggested, a slight edge in her voice.

“I was disappointed with Stella’s progress, as she reported it to me,” Mark said. “And, yes, I do have notes that I made during the meeting.”

“I know; I’ve seen the notes,” Moore said. “They contain absolutely no reference to a decision to terminate. They don’t even express any disappointment with or adverse assessment of Ms. Gagliardi’s progress on the performance plan.”

“In fact, Ms. Gagliardi has testified in this very court that she left the meeting believing that you were satisfied with her progress,” the lawyer went on.

A lack of records
“Nor did you make any other record of a decision to terminate at that time,” Moore said. “No memo to HR, no e-mail, no notation in Ms. Gagliardi’s file.”

“I submit to you and the court that you made no such decision after your meeting,” the lawyer went on. “The decision came a few days later, and was based on the fact that Ms. Gagliardi – whom you already saw as a problem because of her previous illness-related absences – took FMLA leave and was going to miss even more work.”

“You’re spinning a theory that isn’t true,” Mark replied. “We had plenty of performance-related reasons to fire Stella. We didn’t need to cook something up.”

Did Stella win her FMLA lawsuit?

The Decision
Yes, Stella won an important victory when the court refused to throw out her FMLA lawsuit, ensuring that the employer would have to defend itself before a jury or settle out of court.

The court said the lack of documentation from the time of Mark’s meeting with Stella – “contemporaneous evidence,” as the court put it – cast doubt on his claim to have made the termination decision then. The court said a jury might well believe Mark’s testimony was “contrived and, in effect, back-dated so that it would appear the (termination) decision was made completely independent of the … request for FMLA leave.”

Supervisors are told time and time again that they must document personnel action like terminations, suspensions, write-ups, demotions or transfers when they occur. Cases like this one dramatically demonstrate why.

Cite: Worthington v. Whole Foods Market Group, No. 11 C 28, N.D. Ill., 1/22/13. Fictionalized for dramatic effect.

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