Recently, an employer failed to prove it would have fired an employee without regard for his FMLA request. In Ion v. Chevron USA, Case No. 12-60682 (5th Cir. Sept. 26, 2013), the plaintiff, a laboratory chemist, was granted custody of his child in a divorce, resulting in a loss of focus at work. Further insubordination and poor performance resulted in a suspension. While on suspension, the plaintiff obtained a doctor’s note excusing the plaintiff from work due to “too much stress.” While his request for FMLA was being processed, the plaintiff got angry about a request to sign a medical release, and clinic employees complained. At the same time, the employer learned from one of the plaintiff’s co-workers that the plaintiff had said he intended to fake a breakdown so that he wouldn’t have to work. The employer decided to terminate the plaintiff’s employment. The termination letter explained the termination was for the reasons underlying his suspension, saying he was going to fake a breakdown, and failing to come back to work after the suspension.

Applying a mixed-motive analysis, the court put the burden on the employer to show it would have fired the plaintiff regardless of his request for FMLA leave. The employer failed the test: insubordination and poor performance were legitimate reasons for employment action, but the employer had already shot the bolt on that – it chose to suspend the plaintiff, not to fire him. The employer had never investigated the story that the plaintiff planned to fake a breakdown, and the angry outburst over the release was not a reason for termination stated in the letter.

Courts will scrutinize the reasons given to support adverse employment actions. Don’t just take someone’s story as conclusive — investigate.