When considering an FMLA claim and some other kinds of claims, one way courts determine whether A caused B is timing.
Say an employee exercises a legal right by doing something an employer may not like – such as requesting a leave – and then gets fired almost immediately.
That timing suggests that the termination was a response to the request. But it’s not always a ticket to success for complaining employees.
No Link Between FMLA Request and Write-up
A daycare director was fired soon after she requested leave under the Family and Medical Leave Act (FMLA), but an Alabama federal judge found she couldn’t show any connection between the two.
Instead, the company showed her FMLA request came months into its investigation of legal and regulatory noncompliance at her facility. Finding no evidence that the daycare violated the FMLA by interfering with the former director’s right to take an FMLA leave, the court granted the daycare’s company judgment without a trial.
La Petite Academy (LPA) has childcare centers throughout the U.S. Candace Herren worked at LPAs in Alabama for 30 years, ultimately becoming the director of a facility in Birmingham.
In December 2015, an infant at a different Alabama facility became unresponsive during a nap and died.
The tragedy prompted increased scrutiny on all Alabama LPAs by the Child Care Services Division (CCSD) of the Alabama Department of Human Resources, which licenses childcare centers in the state. The CCSD shut down the center where the tragedy happened, and LPA fired its director.
Safety Rules Not Followed
After assessing Herren’s center, the CCSD found multiple problems, including noncompliant recordkeeping; hazardous materials like cleaning supplies, paint and hand sanitizer not locked away; and broken playground equipment.
On February 29, 2016, LPA’s district manager issued a written warning to Herren. It said she could be fired for further noncompliance with state and local regulations and company policies.
Herren signed the warning. The CCSD returned to Herren’s center in early April. It again found multiple problems, like additional hazardous substances not locked up; not all children signed in at arrival or out at departure; staff not washing their hands or sanitizing the area after changing a diaper; 14 infants but only 10 cribs; and the required staff-to-child ratios not being met.
On April 26, LPA put Herren on administrative leave and sent the region’s human resources (HR) manager to investigate her center.
Herren had been granted intermittent FMLA leave from March 2015 to March 2016 to have chemotherapy.
In April 2016, she had to reapply because a new 12-month leave period had begun. On April 26, the same day she was put on administrative leave, Herren requested and got the forms to reapply for FMLA leave from LPA’s headquarters in Michigan.
She emailed the paperwork back on April 27. On May 2, LPA fired her.
That day, she also got a certified letter informing her that she was eligible for the FMLA leave. Herren sued LPA on multiple claims, but the Alabama federal trial court granted LPA judgment without a trial. She appealed to the Eleventh Circuit, which affirmed the decision except for Herren’s FMLA claim of interference. It returned the case to the trial court to apply the proper framework to evaluate this claim.
The court did – and again granted LPA judgment.
Was Timing Suspicious For Company – or Employee?
To state a valid FMLA claim, Herren had to show she was entitled to FMLA leave but LPA denied it.
In returning the case to the federal trial court, the Eleventh Circuit instructed that her interference claim could not proceed if she was terminated for reasons unrelated to her leave request.
So LPA was entitled to judgment if it could show it fired her for a reason that had nothing to do with her request for leave.
The court found it did because before Herren requested the leave:
• LPA warned her she could be fired for further noncompliance with laws and rules
• CCSD went on to issue two more reports that found her facility noncompliant, and
• LPA had put Herren on administrative leave pending further investigation.
Others Fired for Same Offense
LPA credibly said it fired her for multiple CCSD deficiency reports, failure to provide a safe environment for children, violation of company policies, failure to satisfy her job duties and responsibilities, and failure to improve her performance after receiving a written performance improvement plan.
Also, LPA showed it fired at least two other directors for receiving multiple deficiency reports.
The court wrote, “Because LPA began the process of terminating Herren before she ever requested FMLA leave due to poor job performance, LPA has demonstrated that Herren’s employment was terminated for reasons wholly unrelated to the FMLA leave.”
Judgment for the daycare company was warranted.
Suspicious timing typically aids the plaintiff in these cases. But as this decision shows, employers can escape liability with solid evidence showing that the timing was coincidental rather than proof of an improper motive.
Herren v. La Petite Academy, Inc., No. 2:16-cv-01308-LSC, 2:17-cv-00739- LSC, 2022 WL 1203817 (N.D. Ala. 4/22/22).