Thus, according to the 6th Circuit in Tilley v. Kalamazoo Cty. Rd. Comm’n [pdf], a fact issue existed precluding dismissal of an employee’s FMLA interference and retaliation lawsuit as to whether performance deficiencies that led to his termination were caused by a failure to perform job functions while on leave.
Prior to his termination, Tilley’s supervisor tasked him with completing certain projects by August 1. On the due date, Tilley was at work completing the tasks when he “started having cold sweats and feeling clammy,” leading him to believe that he was having a heart attack. His doctor took him off work for three months, and he requested FMLA paperwork. In the interim, the supervisor fired him for failing to complete the three assigned projects by the designated due date.
Tilley argues that if it were not for his medical emergency, he would have completed the job description. By virtue of his termination being, in part, based on the unfinished job description, Tilley believes that KCRC terminated him for not working and thereby violated the FMLA. The termination letter’s citation to Tilley’s failure to complete the updated job classification poses an odd dilemma. On the one hand, it could be viewed as KCRC taking an adverse employment action for Tilley’s failure to complete work on August 1, the time that Tilley started his leave. On the other hand, it could be argued that “the wheels of termination” were put in motion prior to Tilley’s taking leave on August 1.
Tilley’s termination letter creates a disputed issue of fact as to whether KCRC would have terminated notwithstanding Tilley’s alleged failure to adequately complete the three tasks assigned by Bartholomew. That is, it cannot be said that Tilley’s “dismissal would have occurred regardless of [his] request for or taking of FMLA leave.”
Employers, be wary of holding employees accountable for uncompleted work while on FMLA leave. Leave means leave, which means that you risk an FMLA claim if you take action against an employee who leaves unfinished work on the table. While the FMLA does not stop a termination already in the works, and does not excuse otherwise poor performance, it does wrap an employee with certain protections. If you otherwise would have permitted an employee to complete a task but for the FMLA leave, then you cannot hold that employee accountable when the FMLA intercedes and prevents the job from being completed.