Case: Job performance and excessive absence, not FMLA leave, reason for termination

As a school district custodian, Kevin worked second shift. After working for about a year, in November 2020, Kevin received an email from John, his supervisor, regarding job performance issues, including frequent absences that affected operations. Between July 1, 2020, and December 2020, Kevin had used 10 days of vacation and six days of sick leave (three for sickness and three for personal business). Kevin also missed work on January 14 and 15 due to COVID symptoms and testing. After testing negative, he returned to work on January 18.

Around this time, Marcus, the grounds director, noticed a pattern of Kevin requesting Fridays off. Marcus met with Kevin on January 18 and gave him a letter about the missed days. Kevin asked for Fridays off to care for his mother. Marcus offered to change Kevin’s schedule, proposing a Monday through Thursday schedule working 10-hour days, and Kevin agreed.

Fast forward to March 8, when Kevin asked HR for about six weeks off for an upcoming hernia surgery, and HR gave Kevin the applicable forms. Kevin also told this to Marcus and John.

From there, things got interesting. Also on March 8, an alarm sounded in the building and Kevin was called on his cell phone. He did not answer because he claimed he was vacuuming on the opposite end of the grounds.

On March 10, while cleaning John’s office, Kevin noticed a paper listing cleaning assignments. He was curious about the assignments and emailed John about them. John asked Kevin where he learned about the assignments, and Kevin told John he’d seen them on John’s desk. John took offense to Kevin’s looking at paperwork on his desk about other staff members.

On March 11, John asked if Kevin was cleaning hallways, and Kevin said that, while he usually did them, the new custodians were cleaning them.

On March 12, Kevin returned his FMLA paperwork. On March 15, Marcus met with Kevin about his performance, including not responding to the alarm, looking at paperwork on John’s desk, and his previous absences. Kevin got defensive at the meeting and was terminated. He sued claiming he was terminated for exercising his FMLA rights, specifically for requesting FMLA leave for his upcoming surgery, since he was fired shortly after submitting his FMLA forms.

The employer argued the termination was because of job performance and only a small part for poor attendance, even though most of Kevin’s absences occurred before he was eligible to take FMLA leave.

In finding for the employer, the court pointed out that suspicious timing is one piece of evidence to consider, but when it’s the only evidence the employee has, it is not enough to establish an issue. Kevin argued that the stated reasons could not have been enough to warrant termination and, therefore, the real explanation was that the employer had enough of his FMLA absences. The court said that this argument was speculative at best, and the case was dismissed.

Friends, terminating an employee who has requested FMLA leave can have risks, but those risks can be reduced if you have solid evidence that the termination was due to reasons other than an FMLA leave request.

Kaufmann v. School District oof Greenfield, et al., Eastern District of Wisconsin, No. 21-CV-475, May 19, 2022.