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Wednesday, August 6, 2014

Solid Documentation Trumps FMLA Lawsuit

By: Tommy Eden
Erika Langenbach worked for Wal-Mart for over ten years, moving her way up the internal hierarchy. Her progress was consistent until she sought promotion to an Assistant Manager position. Eventually, she completed the company Management-In-Training program and began work as an Assistant Manager.

Although she had impressed her bosses with her previous work, the Assistant Manager position proved to be a challenge. Langenbach struggled with delegation, organization, and time management. 

Langenbach’s annual review took place three months prior to her July FMLA leave request. Her store manager gave her a competency score of 2.63 out of 5 and a rating of “Development Needed.” The review noted that Wal-Mart needed to see a “complete turn around” from Langenbach and a renewed sense of “urgency and time management.” It described specific issues complying with the overnight stocking program, attendance, and holding underperforming associates accountable.

Her mid-year evaluation took place after she returned from FMLA leave. Although the evaluation was prepared in July, before Langenbach took her leave, Wal-Mart decided to deliver it after she returned. This evaluation assessed Langenbach’s overall competency rating at 2.26 out of 5 and assigned her an overall performance rating of “Development Needed.” After receiving more negative performance reviews post FMLA leave, she was fired. Her termination happened to come five months after she returned from FMLA leave.

Langenbach then sued in Wisconsin Federal Court alleging that Wal-Mart retaliated against her for exercising her FMLA rights and discriminated against her because of her sex by delaying her promotion to Assistant Manager, paying her less than her male counterparts, and refusing to promote her further. The district court dismissed the suit following Wal-Mart’s motion for summary judgment, and the 7th Circuit Court of Appeals this week agreed with the dismissal finding that Langenbach had a history of documented performance issues that preceded her FMLA leave and that Wal-Mart had “voluminous evidence” to prove that she was not meeting its legitimate expectations.

Common Sense Counsel: How does an employer (fairly and respectfully) fire someone without getting sued, or win the case if they do? Or in the legal world, bullet proof your discharge decision? Asking yourself the following 5 questions before you pull the discharge trigger will help:

1) Can you prove that the employee had fair notice of the rules or standards of conduct or production standards?

2) Did you conduct a fair investigation before a decision was made?

3) Were you consistent in the manner in which discipline was administered?

4) Did you first utilize progressive discipline?

5) Have you developed an objective and respectfully worded paper document trail proving you followed each one of the above steps?

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA 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 or 334-246-2901. Blog at with June 10, 2013 Bullet Proofing Your Employee Discharge Decision OA News Article. Follow on twitter @teden3