Employee performance Issues, not FMLA reasons


Key to remember:  Employees might believe consequences for performance issues are related to FMLA leave, but employers can survive such claims with solid evidence.

Applies to: All public employers, and private employers with 50 or more employees. Wanda was his supervisor.

Impact to customers: This case can help inspire customers to ensure that they have strong evidence supporting an employee’s performance improvement plan or transfer denials.


Because of its inner-city location, the store was considered to be a challenging and stressful one with a high employee turnover rate. Rick, an assistant manager, personally experienced life-threatening interactions including physical altercations, carjacking, and theft. After over 10 years of service, Rick began experiencing nightmares rooted in work situations both from patrons and because of his workload.

Rick developed anxiety, and asked for related leave, which was approved. He took about two months of leave and returned to his position. He subsequently requested a transfer to another location due to the stressful environment. His request was denied due to performance issues unrelated to his leave. Later that year, he was put on a 90-day performance improvement plan (PIP). The PIP was subsequently extended another 30 days.

Rick submitted an internal complaint that the PIP was in retaliation for his FMLA leave. His complaint did not succeed, but he did complete his PIP. He then asked for a transfer three more times but was denied each time.

Rick sued, in part for FMLA retaliation, as he still thought his PIP and transfer denials were really based on his FMLA leave. In court, however, his argument did not prevail, as he couldn’t show that his transfer requests and PIP were related to his FMLA leave, and the employer could show that they were not. He continued to work at the store and, with some changes, went on to enjoy his job.

Here’s how the employer got it right: The court indicated that it was undisputed that Rick easily obtained a two-month FMLA leave and that he was reinstated to his same assistant manager position on a full-time basis with no dock in pay upon his return work.

It was also undisputed that Rick received no pushback or questioning regarding his leave and that no one from the company made negative comments about his use of FMLA leave or the length of his leave. Without any evidence to the contrary, Rick failed to show, as required to substantiate a prima facia case of FMLA retaliation, that he was punished in retaliation for taking FMLA leave. Therefore, the employer won the FMLA claim.

Friends, it’s not all that unusual to have an employee with performance issues take FMLA leave, then blame any consequences for the performance issues on the FMLA leave. If you have strong documented evidence of an employee’s performance issues and have given the employee no evidence that anyone in management made any negative remarks or actions regarding the employee’s leave, you could win a court battle, like this employer did.

Anderson v. Lowe’s Home Centers, LLC, Eastern District of Pennsylvania, No. 21-2292, June 14, 2022.

Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. 

The J. J. Keller FMLA Manager service is your business resource for tracking employee leave and ensuring compliance with the latest Federal and State FMLA requirements.