The Sixth Circuit, headquartered in Cincinnati, has affirmed a decision that the termination of an employee with cancer following his return from FMLA leave was not a pretext for discrimination. Williams v. Graphic Packaging International, Inc. The employee in question, an upper level supervisor, was apparently mismanaging and intimidating his employees, which only came to light to his boss when the supervisor was out on FMLA leave.
Normally, employees out of FMLA leave enjoy a certain immunity from adverse employment actions. They are generally entitled to return to their jobs if they do so within the 12-week leave period, and they can even allege FMLA retaliation if they ask to return to work after the 12-week leave period while the company is still seeking a replacement, and reinstatement is denied. Moreover, the Americans with Disabilities Act makes it difficult to deny reinstatement over physical or mental conditions without engaging in a process to determine if a reasonable accommodation is available (called the “interactive process”).
Employees who go out on leave, however, are not immune from employment actions that would have taken place if they had not been on leave. If there is a layoff, for example, and the layoff would have reached the employee on leave, the layoff can be implemented. If the company learns that the employee had engaged in serious misconduct prior to the leave, disciplinary action can be taken. Unfortunately, performance problems that needed to be addressed, but were not, are dangerous – if not impossible – to consider during an FMLA leave. That was one of the problems facing Graphic Packaging.
The Court, however, considered the performance issues of the supervisor in the context of the Company’s core values: (1) integrity; (2) respect; (3) accountability; (4) relationships; and (5) teamwork. As such, the Court found the supervisor’s performance more of a disciplinary than a performance issue. The Court said that the supervisor, to sustain his claims of discrimination, would have to show that the Company’s core values argument was raised as a pretext. The supervisor was unable do it.
This case nevertheless demonstrates the danger of not addressing performance and disciplinary problems with employees who then develop disabilities or medical conditions warranting protected leave. Despite winning the case, the Company no doubt spent a great deal on legal fees to get summary judgment then win on appeal. The case also demonstrates the need to communicate with employees regularly about issues in the workplace. Had the Company given employees a forum to report problem supervisors, or problems in general, the supervisor may have been dismissed before invoking protected leave rights.