Terminate an Employee Returning from FMLA Leave and You Could Be Sued in Your “Individual Capacity”

To add to the woes and stress of business owners, supervisors and managers, public and private decision makers who act directly or indirectly in the interest of the employer can be sued in their individual capacity under the Family and Medical Leave Act (“FMLA”).

Most of us forget it, but the same rules that apply to actions under the Fair Labor Standards Act also apply to actions brought under the FMLA (29 C.F.R. Section 825.104(d) (2009)). A July 11, 2011 decision by the Eastern District of Virginia Court, Eastern Division, titled Weth v. O’Leary (U.S. District Court of E.D. Virginia, Alexandria Division) provides important lessons regarding this issue with respect to terminating employees returning from Family Medical and Leave Act, especially if the decision makers are public officials and have sovereign immunity. 

In Weth, the Court refused to grant summary judgment and allowed a FMLA case to proceed to trial because of a highly suspicious timeline, prior raises and highly positive reviews, and the lack of write ups or written documentation bolstering the performance reason defense. 

Plaintiff Weth initially sued O’Leary, both individually and in his official capacity as Arlington County Treasurer. The Court granted Summary Judgment in favor of O’Leary with respect to the official capacity claim because as a state constitutional officer, O’Leary was entitled to sovereign immunity. The Court refused to dismiss the individual claim because sovereign immunity does not apply to individuals sued in their purely personal and individual capacity. The Court cited favorable decisions from various Circuit Courts (Darby v. Bratch, 287 F.3d 673, 681 (8^th Cir. 2002)) where courts found that there was no reason to distinguish liability between individual corporate officers and individual public officials.

Weth was employed as a Deputy Treasurer for Litigation for the Arlington County Treasurer for six years. As late as 2009, Weth had received highly positive reviews regarding her job performance and approved salary increases. 

Weth was diagnosed with cancer in September of 2009 and advised O’Leary. In December, Weth initially sent emails to O’Leary advising him that she would need surgery in January, but then advised that the surgery would be in December. Weth worked until the 21^st of December, underwent surgery on the 22^nd of December and returned to work on the 16^th of February.

On her return date O’Leary advised her that she needed to begin looking for a new job immediately, that she was being demoted and almost all of her job duties were being removed and that her sole responsibility was to find a job. One month later, O’Leary suspended her, sent her home with the directive that she was being relieved of all of her job duties and her sole responsibility was to find other employment. 

She was officially discharged on July 2^nd for performance reasons including unavailability to provide legal advice, keeping her office door closed and her alleged failure to complete several tasks or projects. 

O’Leary claimed that prior to Weth taking leave, he had become worried about her speed and reassigned certain litigation collection and contract responsibilities. However, the only evidence produced to show concerns about performance, availability and reliability prior to Weth’s medical leave were declaration and deposition testimony from a number of Weth’s co-workers.     

With respect to the merits of Weth’s claim, under the FMLA, an employee receives no greater rights than he/she would have had absent taking FMLA guaranteed leave (29 U.S.C. Section 2614 (a) (3)). The FMLA gives employees both prescriptive, or affirmative, rights, and proscriptive rights, which protect the employee from certain actions by the employer. Weth argued that her prescriptive rights were violated because O’Leary interfered with her right to be restored to the same position or equivalent position before she had taken her leave (29 U.S.C. Section 2615 (a) (1)). She also argued that her proscriptive rights were violated because she was suspended and discharged for exercising her rights under the FMLA (29 U.S.C. Section 2615 (a) (2)). 

The first lesson here is that if an employer is going to deny an employee their job back after the employee returns from FMLA leave for legitimate performance reasons, the employer must have some combination of the following:

1. disciplinary write ups or some written evidence of performance issues;
2. history of poor evaluations versus good to great evaluations; and
3. decent timelines (temporal proximity test). 

In Weth, the return date treatment definitely failed the temporal proximity test. Prior raises and satisfactory performance evaluations can be considered evidence that a more recent claim of poor performance is mere pretext for a termination in retaliation for exercising rights under the FMLA, so it is very important to document a decline in performance or disciplinary problems for an employee who has historically been a high performer.

The second lesson here is that you as the decision maker may be called upon to defend your decision in your individual capacity. 

If you are a decision maker, and your company does not keep sufficient personnel records to defend a claim under the FMLA, it behooves you to fix that problem right away, both for the company’s benefit and to protect yourself from a potential lawsuit.

Posted by Attorney Ruth A. Binger. Binger serves both emerging and mature businesses concentrating in corporate law, intellectual property and technology law, and labor and employment law. Her commitment to the success of small to medium-sized businesses, and her understanding of multi-faceted issues inherent in operations, are what distinguish Binger’s practice.