In a recent case, Travers v. Cellco Partnership (Middle Dist. of TN), an employer fired an employee on the day she returned from FMLA leave. Not surprisingly, the employee sued for FMLA retaliation. The employer prevailed on summary judgment after the evidence demonstrated that the employee was warned and disciplined for performance issues before she took FMLA leave and that the timing of the discharge was based on the employer learning of her final misconduct while she was on FMLA leave. The employer was ultimately able to prevail on summary judgment because it was able to demonstrate that the discharge was not motivated by the FMLA leave. The takeaway from this case is a reminder that retaliation is retaliation only when the adverse employment action is motivated by the employee engaging in a protected activity. It is also a reminder that an employee’s participation in a protected activity (such as taking FMLA leave) does not get the employee a free pass for policy violations. However, it is important for employers to remember that temporal proximity between a protected activity and an adverse employment action is a factor taken into consideration by the courts when reviewing a retaliation claim. In addition, although the employer prevailed in this case, it did so after incurring significant litigation costs.
