FMLA Allows An Employer To Base Termination On Performance Problems Discovered During An Employee’s Leave

The Family and Medical Leave Act allows individuals to take unpaid leave from work and requires that in most cases, such individuals be returned to their prior position or an equivalent one upon return from the leave.  The 7th U.S. Circuit Court of Appeals has clarified that requirement, and has held that when an employer discovers information during an employee’s FMLA leave that would otherwise form the basis of a valid termination, the FMLA does not act as a bar to such adverse employment action.

Kevin Cracco was employed by Vitran, a trucking company, as a Service Center Manager in Markham, Illinois.  In October 2006, Cracco requested and was granted a medical leave under the FMLA for a serious health condition that rendered him temporarily unable to work.  Vitran then hired temporary employees to cover Cracco’s responsibilities during his absence.  These employees discovered several problems that had been created during Cracco’s tenure, including undelivered or damaged freight, unresolved customer complaints, and incorrectly handled overtime payments.

An investigation was undertaken, which resulted in a finding that on multiple occasions, Cracco had deliberately disguised late and damaged deliveries, and had made other work-related mistakes.  On November 13, 2006, the day that Cracco returned from his FMLA leave, Vitran terminated his employment.

Cracco filed a lawsuit, alleging that Vitran interfered with his FMLA rights by failing to reinstate him to his position and retaliated against him by firing him.  The district court granted summary judgment in favor of Vitran, and the decision was upheld on appeal.  In addressing Cracco’s claims, the Seventh Circuit found that the timing of Cracco’s termination, standing alone, could not establish a causal link between Cracco’s FMLA leave and his termination.  Instead, the Court held that “the fact that the leave permitted the employer to discover the problems can not logically be a bar to the employer’s ability to fire the deficient employee.”  Otherwise, an employer could be forced to reinstate and continue to employ a substandard employee, or risk liability under the FMLA. 

Additionally, Cracco argued that his prior positive performance history supported his claim of FMLA violations.  The Court disagreed, stating that the existence of such positive reviews did not prohibit Vitran from relying on newly discovered evidence of wrongdoing in its decision to terminate Cracco’s employment.  In fact, because Cracco was unable to show that he met Vitran’s legitimate job expectations at the time of his termination, he was unable to set forth a prima facie case of FMLA retaliation, and dismissal of the case was appropriate.

This case is important, because employers often feel as if the FMLA’s reinstatement requirement insulates employees from discipline or termination upon return from medical leave.  This case indicates that an employee’s right to return to work after FMLA leave is not unlimited.  The fact that an FMLA leave permits the employer to discover problems or policy violations does not bar employer’s ability to fire a deficient employee.  Therefore, an employer’s ability to prove that it would have made the same decision had the employee not exercised his rights under the FMLA can assist in avoiding legal liability under that Act.