A problematic employee is teetering on the brink of termination and suddenly requests FMLA leave. Do you terminate him for cause or grant the FMLA leave and give him another chance to avoid the retaliation claim? What if he also has (1) a claim that no one ever told him about his FMLA rights and (2) a budding overtime claim? Do you terminate him or give him a second chance? ScriptPro LLC bit the bullet and terminated the employee and the federal court said that was okay. In Brown v. ScriptPro LLC (10th Cir. Nov. 27, 2012), the Tenth Circuit ruled that ScriptPro proved it would have terminated Mr. Brown even if he had not requested FMLA leave and upheld the district court’s order of summary judgment.

The Facts. Frank Brown was a nonexempt customer service operations analyst for ScriptPro from March 2007 until his termination in November 2008. During that 21-month period, Brown received one performance evaluation in June 2008 with “mixed grades,” although he was not put on any kind of performance improvement plan. Brown’s supervisor, Mark Eaker, administered the evaluation (although it was prepared by his predecessor, Tammy Becker), pointing out various shortcomings including marginal performance ratings for planning and organization and for work relationships. Additionally, the narrative comments noted concerns about Brown’s excessive internet use, his need to be more aware of personal boundaries at work, disruptive personal phone conversations, and his tendency to be abrasive and argumentative with coworkers, including his tendency to interrupt them. The evaluation provided the following specific examples of his problematic behavior:

  • Arguing loudly with his wife on the phone.
  • Employees feeling uncomfortable at the way he stares at them as they walk by his cubicle.
  • Interrupting conversations regarding sports and getting into arguments.

Brown submitted a written response and he particularly disputed the excessive internet use. A few months later two coworkers complained to supervisors about Brown’s attitude toward customers on the phone. Additionally, Brown failed to timely complete a project and incorrectly completed some scorecards used to grade customer calls.

Brown and his wife were expecting their second child in the fall of 2008 and he notified Eaker that he wanted to take time off after the baby arrived. Although the company had an FMLA policy in the handbook (which Brown received) and posted all required notices, no one informed Brown of his FMLA rights or how to apply for leave. Although the court did not state so explicitly, it appears that no one at the company talked to Brown about FMLA or officially designated any leave as covered by FMLA. Brown claims that in the summer of 2008 he worked about 80 hours from home (unrecorded in the timekeeping system) to “save up” to take as paid leave when his baby arrived that fall. Eaker denied approving any work from home and no one approved any overtime for Brown. The employee handbook required employees to turn in time sheets recording hours worked.

At the end of October 2008, Eaker granted Brown two weeks off to spend time with his new child. Eaker also left the company in October 2008, but sent Brown a parting email indicating he thought Brown was “safe.”

A week or so after returning from his leave, on Wednesday, November 19, Brown sent an email to Becker (because Eaker was no longer there) saying he had an “arrangement” with Eaker about working from home and saving up paid time off and he wanted to use that time to accompany his wife to a doctor’s appointment. That same afternoon, Becker and another supervisor, Al Somers, told Brown that they would not permit this work from home arrangement. Brown and Somers argued, both raising their voices. Brown later apologized to Somers (although he denied banging his fist on the table). Two days later, on Friday, November 21, ScriptPro terminated Brown’s employment for “unresolved, previously discussed performance issues.”

The Lawsuit. Brown filed a lawsuit bringing claims under the FMLA for interference and retaliation, as well as a claim for 80 hours of unpaid overtime. The district court granted summary judgment to ScriptPro on all counts.

The district court held and the Tenth Circuit agreed that Brown established his side of the FMLA interference claim: (1) he was entitled to FMLA leave, (2) ScriptPro’s adverse action interfered with his right to take FMLA leave, and (3) ScriptPro’s adverse action was related to his exercise or attempt to exercise his FMLA rights. In response, ScriptPro proved an affirmative defense, offering evidence that it would have made the same decision regardless of the FMLA request. The court held that ScriptPro proved that defense with undisputed evidence that it had concerns about Brown’s performance before any FMLA issues arose (i.e., unfavorable feedback on his performance evaluation, additional problems with his performance after his evaluation). According to the court, Brown’s evidence that Eaker (who was not involved in the termination decision) told him he was “safe” in October 2008, his evaluation had positive ratings, and his disagreement with one of the negative comments on his evaluation did not create a dispute of fact to preclude summary judgment on the interference claim. With regard to his claim that he was not given any kind of performance improvement plan, the court found that there was no evidence that the company typically provided such plans (although apparently Eaker, the non-decision-maker, did).

The court also affirmed judgment on the FMLA retaliation claim, finding that Brown failed to establish that ScriptPro’s legitimate, nonretaliatory reason for his termination was a pretext. Despite the very close temporal proximity (2 days) and the fact that Brown’s argument with the supervisors that immediately preceded his termination was about time off that would have been FMLA-covered (although no one said it was FMLA), the court found that he had to also present circumstantial evidence of retaliatory motive. Brown’s evidence failed to prove a retaliatory motive.

The court also granted summary judgment on Brown’s unpaid overtime claim. Although he proved that he worked overtime, he failed to show the amount of the overtime by “justifiable or reasonable inference.” In making this finding, the court primarily relied on the fact that Brown chose not to enter any of his overtime into ScriptPro’s timekeeping system, despite the company policy requiring him to enter all time and giving him nearly unfettered access (including from home) to do so. In response to Brown’s argument that it was ScriptPro’s obligation to keep accurate records, the court noted “There was no failure by ScriptPro to keep accurate records, but there was a failure by Mr. Brown to comply with ScriptPro’s timekeeping system.”

Takeaways. There are a number of takeaways from the Brown case but “don’t worry about prior statutorily protected activity” is not one of them. First, good management of an employee’s performance problems, including documentation, is key to defending retaliation claims. The fact that ScriptPro had begun addressing the performance issues months before his FMLA issues arose was crucial to its victory. Because ScriptPro offered undisputed evidence that it had performance concerns and had conveyed them to Brown, it was able to overcome the ridiculously close temporal proximity. Second, a policy requiring employees to be responsible for recording their time and making it easy for them to do so, can sway a court (although probably not the Department of Labor). Reinforcing the company’s commitment to pay nonexempt employees for all hours worked, including overtime, and giving them a way to confirm or correct their hours could save you.

We also need to recognize that ScriptPro may have whistled past the graveyard on a few issues. ScriptPro lucked out that Eaker left the company when he did and was not involved in the termination decision. His “you’re safe” email to Brown may have derailed the summary judgment if he had been in the decision-making loop at the time of the termination. It is important for supervisors to understand that they should be very careful about giving such blanket reassurances to employees. Eaker’s unofficial practice of giving employees improvement plans or goals also could have caused trouble had he still been there. Additionally, ScriptPro got away with not notifying Brown of his FMLA rights. It is undisputed that when Brown said he needed to take time off when the baby was born, no one told him about his rights and no one ever told him about what he could or could not take in the way of leave. Some courts would find a technical violation of the FMLA from that fact alone. Such a failure to notify opens the door for plaintiffs’ lawyers to argue that the company doesn’t care about FMLA, or even blatantly flouts it. To avoid that circumstance, frontline supervisors must understand the need to notify an employee of FMLA rights or get Human Resources involved right away. Had the supervisor denied the leave for some reason (e.g., Brown asked for more than the supervisor thought was necessary, the department was shorthanded, etc.), this case would have had a very different result. Finally, the company was lucky that Brown was either honest enough or not devious enough to lie about what he was told about his timekeeping. Had Brown testified that Eaker knew he was working the overtime and either permitted it or told him not to record it, Eaker’s later denial of those instructions would not have made a difference at the summary judgment stage.

This decision reinforces the message that if you are managing and properly documenting performance issues, you do not have to back down from a potential retaliation claim.