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Poor Performance Gives Cause to Fire Despite FMLA Leave

The 4th Circuit recently held that the discovery
of poor performance reviews was sufficient basis to fire an employee, even
though that employee had had recent positive reviews, and even though the
negative reviews were discovered while the employee was on FMLA leave.

In the case, the employee worked for a private non-profit in
Prince George’s County where her duties included processing applications for
food stamps and renewing applications for public assistance benefits

.  In 2009, while the employee was on a medical
leave, co-workers discovered that many food-stamp eligible clients were no
longer receiving benefits because the necessary paperwork had not been
completed.  When the employee returned,
she was notified of the problems and told to make sure the paperwork was
completed.  The employee received a
performance review that rated her “satisfactory” in most categories, and “above
average” in a few others.  However, after
that review, the organization again learned that some paperwork was not being

In January 2011, the employee was injured in a car accident,
and was granted FMLA leave for the remainder of January and February.  Her co-workers again discovered that many
applicants were no longer receiving benefits because she had failed to submit
the necessary paperwork- forms that were due long before she went on FMLA
leave.  When she returned from FMLA
leave, she was placed on administrative leave, and, as you can probably guess,
was terminated after an investigation determined that 99 out of 160 clients
were not receiving benefits due to her failure to submit timely paperwork. 

The employee challenged the termination as interference with,
and retaliation for, her taking FMLA leave. 
The District Court dismissed her claim, finding that she couldn’t show
FMLA interference as she wouldn’t have been able to keep her position even if
she hadn’t taken FMLA leave.  Moreover,
it also stated that the employer’s explanation for her discharge wasn’t FMLA

The 4th Circuit upheld the dismissal, noting that
her discharge was based on her poor performance rather than her FMLA leave, and
stated that FMLA leave does not provide a bar to dismissal if the dismissal
would be independent of the leave.  The
Court also noted that the employee’s prior satisfactory performance reviews did
not negate the employer’s ability to terminate her upon discovery of her poor
performance.  Here, it is important to
note that the performance evaluation was not subjective, was discovered by
employees outside of the management structure, and was accompanied by
overwhelming objective documentation. 
Overall, it was a fairly easy case for the 4th Circuit based
on the egregiousness of the employee’s behavior.