Documentation and quick response Thelma had worked for the company for about four years as a manager when Tim was hired to be one of her bosses. While Thelma’s performance record showed that she had some positive feedback, the record also showed that she needed some help with her leadership abilities. Despite Tim’s weekly meeting with Thelma to promote her success, her performance issues continued, including yelling and berating employees. At least one of Thelma’s reportees requested transfer due to frustrations with Thelma’s managerial style. Issues such as these supported Tim’s decision to terminate Thelma, and he told Thelma he had lost faith in her supervisory ability, but he did not officially indicate that she was terminated. That day, he also sent an email to human resources communicating the termination decision and his reasoning. Before Tim could formally notify Thelma of the termination, he needed to complete some protocol and a follow-up email to human resources, which he did three days later. In the meantime, Thelma applied for other jobs. But on the evening of the day she was formally told of the termination, she went to the emergency room with abdominal pain and nausea. After being discharged the following morning, she emailed human resources to inquire about FMLA leave. Neither Thelma nor HR included Tim in this request. Thelma did not return to work that week. On Friday, Time sent her the termination papers, since he could not deliver them in person. In response, Thelma sued, arguing that the employer interfered with her FMLA rights and retaliated against her for exercising those rights. Not so fast, said the court. The timeline of events show that Tim decided to terminate Thelma before she tried to request FMLA leave. Therefore, Her FMLA request could not be said to have played any role in Tim’s decision-making process. Thelma tried to argue that her termination had not yet been complete when she requested FMLA leave. But failure to reconsider a decision already made does not amount to unlawful retaliation. The employer won this case because it had ample documented proof regarding its reason for the termination decision — Thelma’s poor work performance. Once it made that decision, it also acted fast, so that, when Thelma needed time off, the die was cast, and it was too late for her to successfully claim retaliation; there was no link between the employer’s decision and the leave. Simpson v. Temple University and T.J. Logan, E.D. Pennsylvania, No. 18-2272, October 23, 2019. This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.