“So when, exactly, did you decide to fire my client, Laura Clevenger?” plaintiff’s attorney Sue Moore asked.

“Well, I first thought about it three weeks before Christmas,” replied Bruce Harkins, who had been Laura’s supervisor at Ajax Corp.

“That’s when Laura called in sick on a day when I knew she wasn’t,” Bruce went on. “She’d already asked for that day off so she could complete a project for her night school class.”

“I had done a lot to accommodate her schedule-wise, and when she called in, I thought to myself, ‘This can’t go on.’ ”

No warning
“But you didn’t fire Ms. Clevenger then,” Moore prompted.

“No, I didn’t,” Bruce said.

“And you didn’t give her a written warning, or put a note in her file,” Moore persisted.

“No,” Bruce said.

“Did you consider firing her at any time after that?” Moore asked.

“Yes,” Bruce replied. “A couple of days after Christmas she arrived two hours late for her shift and left three hours early. That’s when I decided she had to go. On top of all her other absences and tardies, it was too much.”

“But you didn’t fire her then, either,” Moore said.

Termination notice
“Only because I was leaving on vacation the following day,” Bruce said. “The day after I returned, which was one week into the new year, I talked to the HR director. We gave Laura her termination notice a couple days later.”

“And it just so happens that termination notice came three days after Laura had asked for FMLA leave to care for her sick mother,” Moore said. “Isn’t it true that you really fired Laura because of her FMLA leave request?”

“No!” Bruce said. “That’s illegal.”

“And yet these supposedly serious attendance incidents, which you didn’t document at the time they happened, didn’t cause you to terminate Laura until after she’d asked for FMLA leave,” Moore said. “Looks suspicious to me, and I bet it’ll look that way to the judge.”

Did Laura win her FMLA lawsuit?

The Decision
Yes, Laura won a big victory when the judge refused to dismiss her lawsuit, saying there was enough evidence of pretext on the company’s part for the case to be heard by a jury.

The judge pointed to the fact that Bruce hadn’t made any written record that discipline was being considered until after Laura asked for FMLA leave. That did indeed look suspicious, the judge agreed.

Don’t let things slide
This case provides a perfect example of what happens when supervisors let necessary discipline slide. If Bruce had given Laura a warning on the day of her phony call-out, he and the company probably would have been off the hook.

Don’t wait to act when employees commit misconduct. Waiting confuses the issue and may give litigious employees grounds to take you to court.

Cite: Lichtenstein v. Univ. of Pittsburgh Medical Center, No. 11-3419, 3rd Cir., 6/19/12. Fictionalized for dramatic effect.

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