Employer May Have To Extend Probationary Period Interrupted By FMLA Leave

Recently, the 11th U.S. Circuit Court of Appeals was asked to uphold a lower court’s decision to dismiss a claim brought by a public school employee who was fired for failing to complete a performance improvement plan.  The employee’s failure to complete the plan was based upon the fact that during the period of his probation, he was granted an FMLA leave to care for his grand-daughter whose mother – a single parent – was called to active duty in the U.S. Army reserve.  The Eleventh Circuit refused to uphold the lower court’s summary judgment for the employer, determining instead that a factual issue existed as to whether the employee’s failure to complete the improvement plan could be directly traced to his FMLA leave of absence.  Martin v. Brevard County Public Schools, No. 07-11196 (11th Cir. September 30, 2008).

Anthony Martin was hired by the Brevard County School District in 2000 as a payroll supervisor, and worked under an employment contract that was renewable on a yearly basis each June.  In late 2003, Martin’s daughter, Brittany, who resided with Martin and his wife, gave birth to a child.  Because Brittany was a single mother, Martin provided a home, financial support, health insurance, and transportation to Brittany and her child. 

Until early 2004, Martin’s performance always had been rated at the highest possible level. In April 2004, Martin’s supervisor, Degutis, evaluated Martin as “needs improvement” in five categories of performance, and “unsatisfactory” in two others.  At that point, Degutis presented Martin with an improvement plan which required Martin to “demonstrate significant progress” by the date of expiration of his current contract period on June 30.

On April 29, 2004, Martin submitted a request for leave under the FMLA beginning May 7, stating that Brittany’s Army reserve unit had been called to active duty and would soon be deployed oversees, and that Martin needed time off to care for his grandchild.  The school district approved Martin’s request, based on Martin’s assertion that he stood in loco parentis to the child.  However, the district limited the leave to the period ending on June 30, 2004.  After Martin’s leave had been granted, Degutis informed Martin that the district would not renew Martin’s contract for the coming school year if the FMLA leave kept him from fulfilling his improvement plan.  Martin took his leave in spite of that notification.

While Martin was on leave, Degutis recommended that Martin’s contract not be renewed, and the district followed that recommendation.  Martin then sued the district for interfering with his FMLA rights and for retaliating against him for taking leave.  The lower court dismissed Martin’s case on the basis that Martin should not have been granted the FMLA leave, since “no reasonable jury could find that [Martin] stood in loco parentis in this situation.”  However, on appeal, the Eleventh Circuit disagreed and found that a jury might find Martin to have fit that capacity.  In addition, that court analyzed Martin’s FMLA interference and retaliation claims, and found issues of fact that precluded dismissal and required the case to be heard by a jury. 

An individual on a qualified leave under the FMLA is entitled to restoration of his employment upon return from that leave, unless the employer can show that it would have discharged the employee had he not been on FMLA leave.  Martin was not returned to his position upon expiration of his leave because he had not completed his performance improvement plan.  Although the school district argued that it would have terminated Martin’s employment had he not taken the leave, the record did not show that Martin would have been unable to improve his performance had he not been on that leave.  Further, the temporal proximity between the district’s warning to Martin of termination if he took the leave and the actual termination could form the basis of a finding of retaliation.  The case was remanded for trial.

The FMLA regulations provide that if an employee is no longer qualified for a position because of an inability to attend training, take a test, renew a license, etc., that the employee shall be given a “reasonable opportunity” to fulfill those conditions upon return to work from a leave.  The court apparently found this case to be analogous to that situation.  Employers therefore should be aware of the existence of performance improvement plans when scheduling FMLA leaves, and should ensure an actual opportunity for an employee’s improvement efforts before taking adverse action against that employee.  In this case, an extension of the probation to allow time for Martin to attempt to correct his performance deficiencies would have eliminated the uncertainty that precluded dismissal of the case.