I hate bullies.

Back in 4th grade, Sister Mary Demetria, OSF, told us that “hating” someone was a sin.

I’m convinced Sister never met a bully.

Forgive me, Father, for I have sinned. Cause, you see, whenever I read about a bully getting a good smack down, I get all warm and fuzzy inside.

Such is the story of Tim, a manager for Tyson Foods. Over the course of several years, Tim had all the makings of a bully: in 2010, he was disciplined for intimidating a subordinate; in 2011, he was disciplined for openly harassing another employee; in 2012, he again was admonished for threatening an employee with termination for their (legitimate) use of overtime.

What followed in 2013 was the last straw: according to multiple employees, Tim intimidated and was condescending toward others around him, he undermined a supervisor by calling him out in front of others, and otherwise acted unprofessionally toward his co-workers.

Upon considering Tim’s latest conduct, Tyson had enough and quickly terminated his employment. In this era where individuals tend not to take accountability for their actions, Tim filed suit, alleging that Tyson terminated him, in part, because he had just taken FMLA leave a few weeks earlier.

Not so fast, bully,” said the court. Well, it didn’t really say that, but it would have been way cool if it had. Still, the court dismissed Tim’s FMLA retaliation claim in a New York minute, finding that there wasn’t a scintilla of evidence that Tyson was motivated by Tim’s FMLA use when it terminated his employment. Shell v. Tyson Foods, Inc. (pdf)

Sweet justice! As with every bully smack down, there always are lessons to be learned:

Insights for Employers

  1. Don’t shy away from terminating an employee who has recently requested or taken FMLA leave. Employers often are gun shy about disciplining an employee while the employee is on FMLA leave and/or after they have requested leave. This approach is understandable, as employers are worried about the appearance of retaliation because the employee may claim (as he did here) that the employer took action on the heels of an employee’s request for FMLA leave.

Employees facing discipline or termination regularly use laws such as the FMLA in an effort to shield themselves from the consequences of their poor performance or misconduct. But don’t let their would-be FMLA shield cause you to act differently. In other words, carry on with disciplinary measures so long as you can show that you would have done the same absent any request for FMLA leave. In doing so, it often will be critical to show that you have engaged in progressive discipline with the employee before and after the employee requested and/or took FMLA leave.

Here, Tyson’s reasoning was sound. For some length of time, Tim simply was awful to his co-workers and failed to meet Tyson’s reasonable expectations. This conduct continued through his eventual termination, despite the employer’s continued patience. In the end, this employee (and others like him) simply cannot show that the FMLA had anything whatsoever to do with the termination.

  1. But Don’t Rush to Judgment. Where investigations into alleged misconduct are necessary, conduct them! Employers lose when the evidence shows a rush to judgment. See my other posts here and here on conducting lawful investigations where alleged misconduct is at issue.
  2. Similarly, don’t short circuit performance improvement plans (PIPs). If you utilize a PIP for an employee’s deficient performance, don’t accelerate the termination process simply because the employee has taken FMLA leave. Take the case of Sherena, a financial analyst, who was placed on a 60-day performance improvement plan and was told that her continued performance issues could result in termination. After being provided a mid-term review of her PIP at the 30-day mark, Sherena requested FMLA leave. Rather than giving her a chance to take leave and then finish the PIP, the employer short-circuited the situation, deciding to terminate Sherena’s employment instead. Not good, as it was clear that the employer did not intend to terminate her employment for her failure to meet the demands of the PIP prior to her taking leave. Turner v. Florida Prepaid College Board