Poor performance uncovered while worker’s out on FMLA: Can she be fired?
Employers often get very nervous about taking disciplinary action against a staffer who’s just taken — or has just returned from — FMLA leave. A recent court decision illustrates that you might have more room to maneuver than you thought.
A federal appeals court in Maryland has ruled that evidence of an employee’s poor performance that’s uncovered while the worker’s on FMLA leave can be grounds for termination — even if the employee had received positive reviews in the recent past.
A quick look at the case:
Adesina Mercer was the finance and benefits coordinator for The Arc of Prince George’s County, a non-profit social services agency. Her job responsibilities included “applying for and processing initial applications for benefits for [clients] under the Food Stamp Program and Social Security,” as well as helping applicants reapply and renew those benefits.
While Mercer was on medical leave in the spring of 2009, her co-workers performed her responsibilities and discovered that many of The Arc’s food-stamp-eligible clients were no longer receiving benefits. When Mercer returned to work, she was instructed to ensure that the necessary paperwork was submitted to renew those clients’ benefits.
She underwent a performance review in October, 2010. She received marks indicating “satisfactory” performance – twos on a four-point scale – in 13 of the 14 categories, and “above average” (a three) in one category.
But a short time later, the Arc again learned that some food-stamp-eligible clients were no longer receiving those benefits. Mercer was given a list of the clients and instructed to pursue their reinstatement.
Again, co-workers uncover shortcomings
Shortly, Mercer was involved in an auto accident and suffered severe injuries; she took FMLA leave for about three weeks.
Mercer’s co-workers again took over her responsibilities while she was absent. They discovered — and reported to Arc management – that many more eligible clients were no longer receiving benefits due to Mercer’s failure to submit renewal or redetermination requests over an extended period of time prior to her taking FMLA leave.
When Mercer returned to work on February 22, she was placed on administrative leave “due to unsatisfactory job performance and incomplete paperwork.” After an investigation, the Arc found that Mercer had “grossly deviated from her jobs’s requirements” — 99 of the agency’s 160 eligible clients weren’t receiving Food Stamps because she had failed to file for them.
Mercer was fired for “unsatisfactory job performance.” She filed suit alleging that The Arc had interfered with her FMLA rights and then fired her for exercising them.
Earlier reviews trumped by later discoveries
The federal district court granted summary judgment to the employer on both counts. And the appeals court affirmed that ruling.
Both courts agreed that because Mercer wouldn’t have been able to keep her job with or without taking medical leave, she had no grounds for an FMLA claim.
But the most interest part of the ruling, according to Maria Danaher, writing on the Employment Law Matters blog:
The fact that Mercer had received satisfactory performance reviews didn’t affect The Arc’s ability to terminate her employment after the discovery of previously unknown poor performance — even though that evidence came to light during Mercer’s FMLA leave.
That’s good news for employers. But Danaher offers a note of caution:
[It's] also important to note that there was specific and objective documentation of Mercer’s errors, and that the errors were discovered by individuals outside of the termination decision-making process.
Had the poor performance been simply a subjective assessment of Mercer’s skills, had the individual responsible for her termination been the person to have undertaken an investigation or review of Mercer’s past performance, or had there been a lack of objective documentation of Mercer’s performance deficiencies, the court’s analysis and ultimate decision may have been different.
The case is Mercer v. The Arc of Prince Georges County.
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