Sometimes employers become conditioned to believing that an employee who has recently used FMLA leave is effectively immune from discipline or discharge.   It is no doubt true this employee presents a heightened litigation risk, but when the adverse action is handled properly the employer can mitigate that risk or at least make the potential claim more defensible.  A recent opinion from the Eighth Circuit shows the importance of creating a discipline record that will negate any inference the discipline was motivated by an employee’s FMLA usage.

The case is Beckley v. St. Luke’s Episcopal-Presbyterian Hospitals (8th Cir. 5/16/2019).  The plaintiff, Karen Beckley, worked as a surgical technician in the operating room of a hospital.   She was promoted to the position in 2012 while using intermittent FMLA leave.   Beckley continued to be approved and used intermittent FMLA for the next year, until August 2013.   She again qualified for FMLA intermittent leave starting in April 2014 and continued to use the leave until her termination on March 20, 2015.

Starting in March 2014, Beckley started having performance problems. She received a “Level 1” warning on March 10, 2014; a “Level 2” warning on August 12, 2014, and a “final” warning on August 25, 2014.  All of these warnings related to Beckley’s failure to respond appropriately to emergency requests while on call.

In addition to the formal warnings, Beckley also received counseling for performance issues.   On March 13, 2014 she was counseled for being inattentive to details.  During a March 30, 2014 performance review Beckley’s supervisor recommended she take specific steps to help her focus on her role as a technician and decrease the amount of time taking and repetitive questioning during a procedure.  On April 7, 2014 the Hospital against counseled Beckley about the need to focus on the task at hand.

The event precipitating the termination occurred March 9, 2015.   During a complicated surgical procedure, Beckley became contaminated in the operating room when she touched a non-sterile object.  She also left the operating room to use the bathroom without telling the surgeon, and was gone for 10-15 minutes.   Someone else entered the operating room during her absence to assist with the procedure.  Beckley denied she entered a sterile field while contaminated.  She admitted she left the operating room for 15 minutes, but seemed to think it was not a big deal, as she denied it was necessary for anyone to cover for her.   She was terminated about ten days later.

Beckley sued the Hospital for FMLA retaliation, alleging she routinely suffered adverse employment actions following the exercise of FMLA leave.   The key fact Beckley relied upon to support her FMLA retaliation claim was the temporal proximity between her FMLA use, discipline, and ultimately, her termination.  Beckley also claimed she was treated differently than employees not on FMLA leave for what she considered to be minor infractions.  Lastly, she pointed to other evidence of the Hospital’s animus toward FMLA, including a statement from another employee that she needed to “watch herself” with regard to FMLA usage, and a supervisor’s question whether she could schedule doctor appointments outside of work hours,

In affirming the grant of summary judgment to the Hospital, the court found that Beckley’s use of FMLA leave without adverse consequences for nearly 18 months between October 2012 and March 2014 negated any inference that FMLA usage motivated the three warnings she received starting in March 2014. The court found persuasive the consistent record of discipline arising out of failure to abide by the on-call policy as well as other performance issues.   There was little doubt Beckley was on notice of her performance problems before she was terminated. The court found Beckley’s claims of different treatment were only her subjective belief, and the adverse comments about FMLA use were mere “stray remarks” that did not result in tangible injury or harm.

The Beckley opinion is an important reminder that an employer’s hands are not tied because an employee has recently exercised rights under FMLA.    Consistent and documented discipline of bad performance or behavior, especially when combined with evidence that of FMLA usage without consequence before the performance or behavior issues, will provide a persuasive defense.