Positive performance reviews do not negate employer's ability to fire employee upon discovery of previously unknown poor performance.
According to the 4th U.S. Circuit Court of Appeals, evidence of previously unknown poor performance is sufficient basis for an employee’s, even if that evidence is discovered during that employee’s Family and Medical Leave Act (FMLA) leave.Mercer v. The Arc of Prince Georges County, Inc., 4th Cir., No. 13-1300, unpubl., July 11, 2013.
Adesina Mercer held the full-time position of Finance and Benefits Coordinator for The Arc of Prince George’s County, Inc. (“The Arc”), a private non-profit organization, from July 2004 until her discharge in March 2011. Mercer’s job responsibilities included “applying for and processing initial applications for benefits for [clients] under the Food Stamp Program and Social Security,” as well as assisting with renewals and redeterminations of those benefits for those clients.
In the spring of 2009, Mercer was on a medical leave. Co-workers who were performing Mercer’s responsibilities during her absence discovered that many of The Arc’s food-stamp eligible clients were no longer receiving benefits. When Mercer returned from leave, she was directed to assure that the necessary paperwork was completed to assure benefits for those individuals.
In October 2010, Mercer received her annual performance review, during which she was rated as “satisfactory” in 13 of 14 categories, and was rated “above average” in the remaining category. However, in November and December of that year, The Arc learned that certain food-stamp eligible clients still were not receiving benefits. Mercer again was instructed to correct the situation.
In January 2011, Mercer was injured in an automobile accident and requested (and was granted) FMLA leave from January 31 until February 22. Once again, while co-workers were performing Mercer’s job duties, they found many more clients who no longer were receiving benefits due to Mercer’s failures to submit renewal or redetermination paperwork over a period of time prior to her FMLA leave.
Upon Mercer’s return from medical leave, she was placed on administrative leave pending the completion of an investigation. At the end of the 5-day leave, Mercer took additional FMLA leave until March 14, 2011. During the investigation, it was determined that Mercer had failed to obtain and maintain benefits for 99 of 160 eligible clients of The Arc. On March 23, Mercer was notified, by letter, that her employment was terminated.
Mercer filed a complaint in federal district court in Maryland, alleging that her discharge constituted unlawful interference with her rights under the FMLA and retaliation for her exercise of those rights. The district court granted The Arc’s motion for summary judgment on both claims, holding that because Mercer would not have been able to keep her job even had she not taken FMLA leave, she was unable to show that The Arc interfered with her FMLA rights. It further held that Mercer failed to establish that The Arc’s explanation for her discharge was a pretext for FMLA retaliation.
On appeal, the Fourth Circuit upheld the lower court’s dismissal of the matter, pointing out that in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002), the U.S. Supreme Court held that the FMLA does not require an employee to be restored to a prior job after FMLA if that employee would have been discharged had he or she not taken leave. While the full extent of Mercer’s poor performance may not have been known to The Arc prior to January 2011, her leave permitted the employer to discover the depth of the problems that led to her firing. Mercer therefore could not prevail on her FMLA claim, as her discharge indisputably was based on her performance problems.
In analyzing this case, the Court made a specific finding that is of importance to employers: the fact that Mercer had received satisfactory performance reviews did not negate The Arc’s ability to terminate her employment upon the discovery of previously unknown poor performance, even though that evidence came to light during Mercer’s FMLA leave. However, it also is important to note that there was specific and objective documentation of Mercer’s errors, and that the errors were discovered by individuals outside of the termination decision-making process. Had the poor performance been simply a subjective assessment of Mercer’s skills, had the individual responsible for her termination been the person to have undertaken an investigation or review of Mercer’s past performance, or had there been a lack of objective documentation of Mercer’s performance deficiencies, the Court’s analysis and ultimate decision may have been different.