Even when an employee is taking periodic FMLA leave, they are not protected from termination for poor job performance.
In the case of Burciaga v. Ravago Americas LLC, 2015, the 8th Circuit Court of Appeals held that Ravago Americas, a manufacturing company, did not engage in discrimination under the Family and Medical Leave Act (FMLA) after firing Elizabeth Burciaga in 2012.
Burciaga started working at Ravago Americas in 2007 as a customer sales representative. Her job duties included contacting sales representatives and customers, receiving and processing orders, scheduling shipments and resolving customer issues.
In 2008 and 2010, she requested and was granted FMLA leave for the births of her two children. After returning to work from each leave, she continued to be employed and received annual pay raises.
In 2011, Burciaga started to have performance issues. Her supervisor, Jeremy Howe noticed her taking a longer lunch break than normal and also mistakenly sending a shipment twice. Howe warned her that if these errors continued, she might be fired. After this he began to keep the incidents on record.
In July 2012, Burciaga requested and was granted periodic FMLA leave to care for her son. Howe granted Burciaga time off when she requested it, and allowed her flexibility in her schedule so she could attend medical appointments. Burciaga took half-day leaves in August and September of 2012.
For a few weeks in September, Burciaga made a series of shipping errors. Ravago fired Burciaga for her performance errors on September 28, 2012.
Burciaga sued Ravago in district court, stating that Ravago fired her for using FMLA leave. The district court granted summary judgment to Ravago, finding that Burciaga failed to establish a casual connection between her FMLA leave and being fired, or to show sufficient evidence that the company’s stated reason for the termination was a pretext for discrimination.
Burciaga appealed, claiming that Ravago discriminated against her when the company terminated her after taking periodic FMLA leave.
The 8th Circuit upheld the lower court’s findings that Burciaga failed to make a case for discrimination. To prove a discrimination claim, an employee must prove that the employer’s adverse action against the employee was motivated by the employee’s use of FMLA rights.
Burciaga took FMLA leave on two prior occasions and her supervisor allowed her the flexibility to rearrange her schedule and take time off of work without repercussions or any comments about Burciaga’s need to take FMLA leave, suggesting that the company was not hostile to the protected activity.
The main points to take away from this court case are:
- If an employee requests or is granted FMLA leave it does not give the employee any greater protection against termination or other discipline for reasons unrelated to the FMLA leave.
- If an employer determines that disciplinary action against an employee is necessary, the decision and action must be accurately documented.