A recent Eleventh Circuit case under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) approved Dollar General’s termination of an employee on leave. The timing of Dollar General’s decision could not have been worse (at least from a lawyer’s perspective)—the employee was still on leave for cancer treatment when the company determined she had committed a terminable offense. Despite this unfortunate temporal proximity to her FMLA leave, the Eleventh Circuit found Dollar General’s investigation and decision making were unrelated to her disability and leave, and affirmed summary judgment for the company.
Kimberly Thomas, a Dollar General store manager who had cancer, requested and received FMLA leave for treatment (a double mastectomy). During Thomas’s leave, her store was robbed, so her boss investigated and determined that two of the store employees had not taken the computer-based course on robbery prevention (CBL). The employees’ records, however, indicated that they had taken the CBL. Dollar General concluded that Thomas took the CBLs for them and falsified company records to suggest they were trained—a terminable offense. Thomas denied that misconduct and said she told the employees to take the computer training “off the clock.” Not surprisingly, Dollar General found working employees off the clock was not okay and terminated Thomas—while she was still on FMLA leave.
Thomas filed a lawsuit claiming her termination was (1) discrimination based on her disability (cancer), (2) FMLA interference because the company did not return her to her position following her leave, and (3) FMLA retaliation because the company fired her while she was on leave. To support her claim, she relied on the close temporal proximity of her FMLA leave and her termination, her denial that she falsified records, and her boss’s comments suggesting hostility toward her disability and leave. She also pointed to a potential comparator, Reeves, who Dollar General investigated for changing an employee’s computer record but did not fire.
The district court granted Dollar General’s motion for summary judgment on all claims, and the Eleventh Circuit affirmed. Essentially, the Court found that Thomas did not show that Dollar General’s legitimate reason for her termination—that she either falsified the employee training records or worked employees off the clock—was pre-textual. That Thomas denied falsifying records did not create a dispute of fact as long as Dollar General had a reasonable good-faith belief she did. As to Thomas’ alleged comparator, Reeves, the Court found that he was not similarly situated because although both he and Thomas were investigated for potential falsification of records, the investigators concluded that Reeves was not guilty but that Thomas was. As to the alleged hostile remarks, the Court found they were at most “stray remarks” that did not create a dispute of fact regarding pretext.
The moral of the story? You can fire employees for misconduct even if they are on FMLA leave and are clearly protected by the ADA. Be careful about doing so, however, because you will likely get a charge and/or a lawsuit from it. When faced with this scenario, do a thorough investigation, and be sure that your reasons for termination are defensible. Look for comparators (because the plaintiff’s counsel certainly will), and be sure that you have treated similarly situated employees in the same manner.