In Weaver v. Netflix, Inc., a federal trial court rejected an Oregon employer’s argument that it terminated an employee for performance reasons and determined a trial was necessary to weigh the employee’s claims that she was terminated for requesting leave under the FMLA and its state law counterpart, the Oregon Family Leave Act . Though the employee had performance and absenteeism issues prior to the requested leave, the court determined that the timing of the termination, less than two weeks after the leave was requested, was sufficiently suspicious that a jury needed to resolve the case.
The employer introduced evidence that the employee’s performance ratings “were consistently the lowest among her peers” and that she had shown poor judgment in the past by taking a vacation during the busiest time of the year for the company. The employer also introduced evidence that, based on these faults, the employee’s supervisor planned to terminate her prior to becoming aware of the need for leave, but was holding off until the conclusion of the employer’s busy holiday season. The supervisor never documented this plan and, just weeks later, the employee informed the employer that she needed neck-fusion surgery that would cause her to miss between two and six weeks of work. Less than two weeks later, at the end of the employer’s first quarter (and busy season), the employee was terminated.
The court determined that the employee was “skating on the thinnest of ice,” yet still ruled that there was enough evidence to proceed to trial. Because of the brief period between the request for FMLA leave and the termination, the court found the employee could raise an inference that the employer terminated her in retaliation for exercising her rights under the FMLA. Additionally, the employer’s termination documentation included a statement that the employee failed to use “good judgment when asking for time off.” The court concluded that this could have referred to the FMLA leave, despite the employer’s contention that it referred to the previous vacation she took.
The key takeaway here is not only to document your decisions and plans, but to do so in a thoughtful and timely manner. Had the supervisor indicated her intent to terminate the employee in writing prior to becoming aware of the FMLA leave, the employer almost certainly would have won the case. Likewise, had the employer been more careful when preparing its termination documents, specifically mentioning the employee’s ill-advised vacation, rather than referring more generally to “time off,” the court probably would have ruled in the employer’s favor. What you write, when you write, and how you write it can be the difference between getting a case dismissed quickly and having to litigate it in front of a jury.