POOR PERFORMANCE PREVIOUSLY UNKNOWN BUT DISCOVERED DURING FMLA LEAVE MAY LAWFULLY SUPPORT EMPLOYEE’S TERMINATION

Employers often face the issue of whether or not they can discipline an employee who is already on some kind of medical leave.  Despite how common that situation may be, many employers think they are unable to take action in that situation.  While the exact answer is always going to be resolved on a case-by-case basis, employers aren’t always as hamstrung as they may feel. 

In a decision issued several months ago by the Fourth Circuit Court of Appeals – which geographically covers West Virginia, among other states – the Court held in Mercer v. The Arc of Prince Georges County, Inc. that evidence of previously unknown poor performance is sufficient grounds for an employee’s discharge, even if the evidence of poor performance is discovered during a protected absence by the employee under the Family and Medical Leave Act (FMLA). 

In Mercer, the plaintiff, Adesina Mercer, was employed as a full-time benefits coordinator by The Arc of Prince Georges County, Inc., (“The Arc”) – a private, non-profit organization in Maryland that provides programs and benefits to individuals with disabilities.  In the spring of 2009, Mercer took medical leave.  During her absence, her co-workers performed her duties, and they discovered that many of The Arc’s clients who were eligible for food stamps were not receiving benefits.  When Mercer returned to work, she was directed to ensure that the necessary paperwork was completed to renew benefits for those individuals. 

In October 2010, Mercer received her annual performance review. She was rated as “satisfactory” in 13 of 14 categories and as “above average” in the remaining category.  In November and December 2010, however, The Arc again learned that some of its benefits-eligible clients were not receiving food stamps.  Mercer was again instructed to fill out the necessary paperwork to reinstate benefits for these individuals. 

Then, in January 2011, Mercer was involved in an automobile accident and took leave under the FMLA from January 31 until February 22.  While Mercer was on leave, her co-workers performed her duties.  During this time, Mercer’s co-workers again discovered that many more eligible clients were no longer receiving benefits due to Mercer’s failure to complete required paperwork over an extended period of time prior to her taking leave pursuant to the FMLA. 

When Mercer returned to work on February 22, she was placed on administrative leave while The Arc conducted an investigation.  The Arc’s investigation revealed that Mercer had failed to obtain and maintain food stamp benefits for 99 of its 160 eligible clients.  On March 23, 2011, The Arc notified Mercer that it was terminating her employment. 

Mercer filed suit alleging that her termination constituted unlawful interference with her rights under the FMLA, and retaliation for exercising those rights.  The Arc initially moved to dismiss the case, and the District Court in Maryland ruled that because Mercer would not have been entitled to keep her job even had she not taken leave under the Act, she could not show that The Arc interfered with her rights under the FMLA.  It further held that Mercer failed to establish that the Arc’s reason for her termination was a pretext for retaliation. 

Mercer’s later appeal also fell on deaf ears.  The Fourth Circuit held that the FMLA does not require an employee to be restored to his or her prior job after leave under the FMLA if he or she would have been discharged had he not taken leave.  According to the Court, the fact that Mercer had previously received satisfactory performance reviews did not negate The Arc’s ability to terminate her employment upon the discovery of previously unknown poor performance – even though the poor performance came to light while she was on leave under the Act. 

The Court’s decision in Mercer is important because it’s a reminder to employers that employees on leave pursuant to the FMLA are not automatically shielded from disciplinary action which would have occurred even if the employee did not take leave under the FMLA.  Put another way, employers may still use poor performance discovered only while an employee is taking leave under the FMLA for discipline purposes.  

Of course, employers in the 4th Circuit (or anywhere else) should not rely on Mercer to single out employees on FMLA and look for deficiencies in their performance.  The Court’s ruling may have been different had this situation occurred in Mercer, instead of the plaintiff’s poor performance coming to light in the usual course.  To try and navigate this challenging landscape more easily, employers who are faced with the decision of discharging an employee during or immediately after an employee’s leave under the FMLA are encouraged to consult with legal counsel before taking action.

Julie Moore is a Member in the firm’s Morgantown office. Julie focuses her practice primarily in labor and employment law. She regularly advises and counsels employers – both private and public – on various aspects of employment law, ranging from wage and hour compliance, to employee discipline and termination issues, to disability accommodation requests.
 
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