Employees eligible for Family and Medical Leave are not immune from discipline or discharge for reasons unrelated to their leave or leave request. However, employers need to be extremely careful about terminations or other adverse employment actions that appear to be related to an FMLA request due to their timing. Last week, the Seventh Circuit Court of Appeals reversed summary judgment for an employer on an FMLA claim, and allowed the claim to proceed for a jury trial based largely on the timing of the decision.

In Goelzer v. Sheboygan County, the plaintiff was fired two weeks before she was scheduled to begin two months of FMLA leave. She alleged that the performance reasons given for the termination were a pretext to discharge her due to her supervisor's displeasure over her impending absence from work.

The Seventh Circuit agreed with the plaintiff, remanding the matter for trial. In its decision, the court noted that the timing of the decision raised questions over the motivation behind it. In addition to the timing, the plaintiff had recently received a good performance review. She was also able to introduce evidence of statements by her supervisor expressing problems that prior FMLA absences had caused within the department.

The timing of the decision when combined with these other facts created a triable jury issue, despite the multiple performance deficiencies explained by the employer. Employers that do not act on these performance problems prior to the FMLA request face the prospect of a jury deciding the actual motivation for the decision. Absent very clear justification for the termination decision, managers looking to fire employees on or about to leave for an FMLA-protected reason might be better served by postponing the decision until the employee has returned, and has been given an opportunity to demonstrate their continuing capacity to perform the job.