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Court Rejects FMLA Claim by Employee Fired For Refusing To Sign Performance Improvement Plan

Ford & Harrison LLP - Atlanta Office

May 15, 2009

Previously published on April 2009

The Seventh Circuit recently held that an employer did not violate the Family Medical Leave Act (FMLA) when it discharged an employee who refused to sign a Performance Improvement Plan, even though the discharge occurred less than two months after the employee took FMLA leave. See Cole v. Illinois (7th Cir. April 7, 2009).

In this case, the plaintiff, Cole, took FMLA leave after she was in a car accident. Cole had performance problems before she went on leave, which continued after she returned to work. After she returned from leave, her supervisors developed a Performance Improvement Plan (PIP) that identified three areas in which she needed to improve: attendance, attitude, and job performance. Under attendance, the PIP stated that Cole needed to more effectively communicate to her superiors the exact days and times she would be out of the office. To this end, the PIP suggested Cole write out her schedule on a daily and weekly basis, give her supervisors a copy of the schedule, and notify them of any deviations from the schedule. The PIP also stated that Cole needed to plan her day and become more organized with her work.

Cole's supervisors told her she would be fired if she did not sign the PIP. Nevertheless, she refused to sign it and was discharged. Subsequently, Cole sued her employer in federal court claiming her discharge violated the FMLA.

The trial court ruled in favor of the employer and the Seventh Circuit affirmed this decision. Noting that Cole was told twice that she would be discharged if she didn't sign the PIP, the court found no evidence that her termination was motivated by anything other than her refusal to do so. The court further held that even though Cole was fired within two months of taking FMLA leave, "suspicious timing alone rarely is sufficient to create a triable issue."

Additionally, the court held that requiring Cole to sign the PIP was not an adverse action; thus, she was not subjected to retaliation when she was asked to sign it. Relying on the U.S. Supreme Court's decision in Burlington N & Santa Fe Ry. v. White, 548 U.S. 53 (2006), the Seventh Circuit held that the adoption of the PIP did not constitute an adverse action that would cause a resonable employee to forego exercising her rights under the FMLA. The court noted that the most onerous aspect of the PIP was the requirement that Cole submit daily and weekly schedules to her supervisors. "Although the task of preparing daily plans would necessitate some extra work, this requirement is not so oppressive that a reasonable employee would be discouraged from taking FMLA leave."

The court further noted that signing the PIP would not make Cole ineligible for job benefits. Rather, "the context for the plan was an attempt to secure Cole's FMLA benefits while ensuring that she made an adequate contribution to the office."

Additionally, the court held that Cole's situation was not similar to an earlier case in which the court found that an employee was subjected to retaliation after she was told she missed too much work and was given the option of resigning or accepting a lower paying position. Unlike that case, Cole could have signed the PIP and presumably avoided termination. Further, the court noted that unlike the employee in the earlier case, Cole did not face a materially adverse employment action, but instead faced "the less-than-intimidating prospect of planning her days and minding her tone."


The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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