The Family and Medical Leave Act prohibits employers from discriminating against employees who have taken leave under that Act. However, the 7th U.S. Circuit Court of Appeals has affirmed summary judgment in favor of an employer who terminated an individual for excessive absenteeism and performance issues that developed prior to that employee’s request for FMLA leave, even though her termination occurred during that protected leave. Long v. Teachers’ Retirement System of Illinois, 7th Cir., No. 08-3094, Oct. 23, 2009.

Julie Stephens Long was employed by the Teachers’ Retirement System of the State of Illinois (TRS) from 1985 until her termination in 2006. Starting in 2000, Long worked in TRS’ payroll department, where she had responsibilities that included enrolling members in an electronic fund transfer (EFT) program, entering information into a database, and verifying bank routing and account numbers. She reported directly to TRS’ Payroll Insurance Manager (Branham). While Long’s initial performance in Payroll was good, both her absences and her work errors increased over time. In June of 2005, Long missed 25% of her scheduled work days; this rose to 40% during the following month. In addition, Long failed to train employees from other departments on the EFT process, in spite of multiple directives from Branham to do so.

On July 26, 2005, Branham met with Long to inform her that because of her frequent absences, he planned to withdraw his nomination of her for a promotion. In September, Branham traced several errors in the EFT system to Long. He then met with Long to discuss her errors, her failure to conduct the requested training sessions, and the effect of her increased absences on co-worker morale. He summarized those issues in a memo dated September 20, 2005.

On September 26, Long applied for FMLA leave for medial epicondylitis (“tennis elbow”). After the leave was granted, Long informed TRS that her September absences were related to that condition. She then modified her leave request to ask for intermittent leave for treatment of ovarian cysts. She took six days off in October and eight days in November under that leave. However, she also was absent on nine days in December 2005 and five in January 2006 for non-FMLA reasons. Branham’s frustration with Long increased to the point where he met with TRS’ HR manager (Larkin) and a Deputy Director of its Benefits Department (Sherman) and recommended that Long be fired. Larkin then undertook a full review of Long’s performance evaluations, co-worker and TRS member complaints, and comments from both Branham and Sherman, and then recommended to TRS’ Executive Director (Bauman) that Long’s employment be terminated. Bauman had no knowledge of Long’s FMLA leave when he made the final decision to fire her.

Long filed suit against TRS, claiming violation of the FMLA. While TRS did not dispute the fact that Long engaged in protected activity when she took the FMLA leave, it argued that its decision to fire her was based on a number of factors, and not on any retaliatory animus. The district court granted summary judgment in favor of TRS, and decision was upheld by the 7th Circuit on appeal.

Long’s lawsuit centered around the claim that Branham was angry about her absences, and that he unduly influenced the decision to fire her on that basis. However, the Court noted that Long had not applied for leave prior to the documented disciplinary meeting with Branham on September 20, and that Branham already had documented the fact that Long’s absences were negatively affecting the performance of her group prior to Long’s request for leave. Therefore, any comments by Branham regarding Long’s pre-FMLA leave absences could not be used as evidence of FMLA retaliation on Branham’s part. Further, the Court pointed to Larkin’s independent investigation, in which she reviewed not only Branham’s comments, but information from others as well. The decision to fire Long ultimately was made by Bauman, who relied on multiple sources of information, and was unaware of Long’s FMLA leave.

The critical issues in this matter are ones of which employers should be aware: (1) Branham’s documentation of his September meeting with Long showed that there were performance concerns prior to Long’s request for FMLA leave; (2) the multiple sources of information used in the termination investigation supported TRS’ argument that Branham’s concerns about Long were not the sole basis for TRS’ decision; and (3) the independent deliberation of the ultimate decision-maker was evidence that Branham was not the deciding factor in the adverse action against Long. Companies that follow this model of “documentation/multiple sources of information/independent decision-making” are far more likely to be successful in avoiding liability under the FMLA.