FMLA: Discipline Unrelated to Leave Is Not Retaliatory


The New Hampshire Federal Court issued a recent decision affirming that an employer may take disciplinary action against an employee who has taken FMLA leave, provided the information is accurate and unrelated to the leave.  The Court in Ameen v. Amphenol Printed Circuits, Inc. (Opinion No. 2013 D.N.H. 177) granted summary judgment for the employer against an employee claiming he was terminated in retaliation for taking FMLA leave, and noted “an employee may not immunize himself from being discharged for reasons unrelated to the FMLA simply by taking leave under that statute.”

The employee had taken approved leaves following the birth of his child, but upon his return it was reported that he had been violating the company lunch and break policy by the manner in which he had punched in and out for breaks.  An investigation determined he was receiving a fifteen minute paid break per day in violation of company policy and it had been occurring for two years.  The supervisor who decided to terminate the employee had no knowledge of the FMLA leave.  The Court declined the plaintiff’s invitation to apply the cat’s paw theory of imputing motive up the chain to that decision maker because the individuals who made the initial report and reported the results of the investigation produced accurate information.  The Court concluded that if it allowed accurate reporting of employee misconduct unrelated to the FMLA conduct to count as evidence of retaliatory animus, an employer’s ability to discharge an employee for reasons unrelated to the protected FMLA conduct would be “significantly constrained.”

Had the facts been different – for example, if the information reported to the decision maker was inaccurate – the result would likely have been different.  While this opinion affirms an employer may discharge an employee for legitimate reasons unrelated to protective FMLA activity, the decision maker must take care to ensure the accuracy of the information that serves as the basis for the adverse employment action and that it is truly unrelated to the leave.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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