By Tommy Eden, Attorney
In Schaaf v. SmithKline Beecham Corp. d/b/a GlaxoSmithKline (11th Cir. Apr. 6, 2010) the Court affirmed the dismissal of an employee’s Family and Medical Leave Act (FMLA) claim holding that SmithKline did not violate the law by demoting an employee when she returned from maternity leave for performance deficiencies discovered while the employee was out on leave.
In July 2002, three District Sales Managers complained in writing to the SmithKline HR department that Schaaf had (1) an antagonistic and inflexible management style, (2) was inaccessible, (3) had poor communications skills, (4) tended to play favorites, and (5) failed to give feedback on performance. SmithKline issued Schaaf a verbal warning, and her supervisor directed Schaaf to complete a Performance Improvement Plan (“PIP”). The PIP required Schaaf to issue previously uncompleted written performance reviews and to attend management-training programs. At about the same time, she informed her supervisor that she was pregnant and would take FMLA leave seven months later. During the next 7 months she failed to complete the performance evaluations, failed to take any training and failed to meet the PIP’s deadline.
During Schaaf’s leave, an interim assumed her duties and the region functioned significantly better with increased productivity, improved communication, and morale was higher. Shortly before Schaaf’s return, concerns were expressed that the region’s increased morale and productivity would end if Schaaf resumed her position. The day Schaaf return from FMLA leave her supervisor gave her a choice of either accepting a demotion or leaving SmithKline. She accepted the demotion and sued for interference with her FMLA rights. The District Court Judge granted SmithKline’s motion to dismiss as a matter of law and Schaaf appealed.
The 11th Circuit Court assumed that Schaaf successfully established a prima facie case for FMLA retaliation: because she showed (1) she took leave to care for her newborn child, (2) SmithKline demoted her, and (3) her demotion was temporally proximate to her leave. SmithKline proved that it demoted Schaaf because of managerial ineffectiveness, a legitimate reason unrelated to her FMLA leave. Schaaf argued that, because SmithKline learned of certain performance issues while she was on leave, her leave caused her demotion. The Court held that the FMLA purpose “is not implicated in the least if an employee’s absence permits her employer to discover past professional transgressions that then lead to an adverse employment action against the employee. Such absurdities would effectively protect deficient employees from adverse employment actions, such that those workers could actually attain job security by seeking leave under the FMLA.” The Court found such argument “laughable” and unsupported by policy, common sense, or the FMLA itself. It is refreshing to hear that type of justice.
Common Sense Counsel: This case is an outstanding example of an employer taking prompt steps to discipline an employee, with well drafted written warnings, supported by statements from co-workers and a Performance Improvement Plan. Remember the 4 steps to good discipline are: 1) Do it Regularly 2) Be Objective 3) Give Examples and 4) Review with Employee. Given the potential risk of liability when taking adverse action against someone just back from FMLA, don’t do this at home without first consulting your management labor counsel.
Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at firstname.lastname@example.org or 334-246-2901. Blog at www.alabamaatwork.com