Taking action against an employee after they return from a Family and Medical Leave Act absence can expose an employer to claims of FMLA retaliation. But sometimes it takes an employee’s absence to learn about that employee’s performance issues. So how should an employer handle disciplining someone who is returning from protected leave when the misconduct was discovered during their absence?

Montoya’s 2009 leave and warning

Cynthia Montoya worked as a fabrication supervisor for Hunter Douglas Window Fashions where she supervised 55 employees. In 2009 while she was on FMLA leave, a number of Montoya’s employees complained that she was not available to assist them because of personal internet use. When Jeff Geist, Montoya’s supervisor, looked into her workers’ complaints, he discovered Montoya’s personal internet usage totaled 24.5 hours during a six-week time period.

When Montoya returned from FMLA leave, Geist issued her a “Final Warning and Improvement Plan,” which directed Montoya to make herself available to members of her team and established performance requirements. Geist specifically addressed her excessive personal internet usage and warned Montoya that she would be subject to additional discipline, including termination, if these problems recurred.

Although not without a few speedbumps, Montoya’s general performance during 2010 and 2011 was satisfactory. In 2010 Geist evaluated her positively, noting her personal internet use had declined. In 2011, Geist counselled Montoya about “[g]oing through the motions, and not showing much engagement in her job.” Geist was also critical of Montoya complaining about having to cover overtime shifts. Nevertheless, Montoya received another satisfactory review.

Montoya’s 2012 leave and her firing

In August 2012, a couple of circumstances caused Montoya to miss work. First, she took FMLA leave to care for her terminally ill mother. Soon thereafter, Montoya’s fiancée broke their engagement, and she received treatment from a psychologist for “stress and relationship complications.”  Montoya left a voicemail message with the company’s HR representative, advising that her doctor was taking her off work for the following week.

Hunter Douglas’ insurance company sent Montoya the necessary FMLA notifications and requests for information from her healthcare provider. Montoya did not return the forms, and she did not follow up with her employer about FMLA leave. Accordingly, FMLA leave was denied, and Hunter Douglas charged Montoya vacation time for her absence.

Once again, Montoya’s 2012 absence triggered employee complaints. Co-workers reported to Geist that Montoya had been leaving work early and was frequently missing for hours. According to her employees, Montoya spent an inordinate amount of time on her cellphone and spent significant time on the internet planning her wedding, rather than working. When Geist investigated Montoya’s internet usage, he discovered more than 11,825 non-work internet hits, including a significant number on macys.com, facebook.com and menswearhouse.com. Geist also determined Montoya was six to eight months late in completing performance reviews for eight of her subordinates.

On August 20, Montoya returned to work, and Geist met with her about the employee complaints and his discoveries. Montoya admitted her increased personal internet use, but explained she was excited about her wedding. According to Montoya, she had failed to complete the performance reviews because “things had been very busy.”

Hunter Douglas fired Montoya based upon her conduct and violation of the 2009 Final Warning. Montoya sued her former employer and accused Hunter Douglas of gender discrimination and of retaliating against her on the basis of using or requesting FMLA leave.

Why the employer could make its firing stick

The Tenth Circuit Court of Appeals (the federal appeals court that covers Oklahoma) found in favor of the employer and against Montoya’s discrimination and retaliation claims. The points made by the court are instructive for any employer facing the possibility of taking action against an employee who has recently returned from a legally protected leave:

• Previous, documented warnings of performance problems. Here, the 2009 Final Warning demonstrated Montoya’s issues were recurring, and she had been put on notice that termination was the next step.
• Strong proof of the misconduct. Here, in 2009 and in 2012 co-workers had reported the Montoya problems to her supervisor, and resulting investigations established that the misconduct had occurred.
• Consistency of disciplinary action taken. Here, Montoya was unable to show any employees with similar conduct having received more favorable treatment.

Montoya v. Hunter Douglas Window Fashions, Inc., Case No. 14-1491 (10^th Cir. 1/25/16)