The 8th U.S. Circuit Court of Appeals has determined that a customer service representative who was fired for performance issues during the same period of time in which she requested leave under the Family and Medical Leave Act (FMLA) to care for her child could not support her FMLA discrimination claim. Burciaga v. Ravago Americas, LLC, 8th Circ., No. 14-3020, July 2, 2015. The court’s dismissal of the claim was based on the fact that the employee was unable to show that the reason set forth by the company for her discharge — multiple shipping errors within a 17 day period – was a pretext for discriminatory treatment based on her request for leave.

The FMLA provides unpaid leave to eligible for certain specific reasons, as spelled out under the statute. Employers may not “interfere with, restrain, or deny the exercise of” any rights under that Act. An individual can bring an entitlement claim for interference with FMLA rights, or a discrimination claim, alleging that she was treated differently because of an FMLA leave or request for leave. An employee making a discrimination claim must prove that the employer’s action was motivated by the exercise of FMLA rights by the employee.

Once an employee shows that she has engaged in an activity protected under the FMLA, that she has suffered an adverse employment action, and that some “causal connection” exists between the two, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the challenged action. The burden then shifts back to the employee to show that the proffered reason was simply a pretext for discrimination.

Elizabeth Burciaga began working for Ravago Americas, LLC in 2007 as a customer service representative, contacting sales representatives and customers, receiving and processing orders, and resolving customer issues. In 2008 and again in 2010, Burciaga requested and was granted two separate FLMA leaves for the births of her two children, from which she returned and after which she remained employed and received annual raises.

In 2011, Burciaga began to have performance problems, including a shipping error which she mistakenly shipped twice. The errors were noted by her supervisor, Jeremy Howe, who told Burciaga that if errors continued, she may be terminated.

In July 2012, Burciaga requested and was granted intermittent FMLA leave to care for her son. She did not inform Howe that she was taking FMLA leave, but told him that she would be absent when her son needed care. Howe allowed time off to Burciaga when she requested it, and allowed flexibility with her schedule to attend necessary medical appointments. Between August 8 and September 6, 2012, Burciaga took three half-day leaves.

Then, between September 10 and September 27, 2012, Burciaga committed a series of four shipping errors, including one in which she failed to discern between two of her own customers. On September 28, 2012, her employment was terminated for her performance errors.

Burciaga filed a lawsuit against the company, alleging that the firing was based on her FMLA leave. The lower court granted summary judgment in favor of the company, finding that Burciaga failed to establish a causal connection between her FMLA leave and her firing.

On appeal, the Eighth Circuit affirmed the lower court’s decision, but did so on the basis that Burciaga was unable to show that the legitimate non-discriminatory reason proffered by the company — that Burciaga had made four shipping errors in a three-week period, in spite of her five years of experience with the company – was a pretext for discrimination.

In its opinion, the Eighth Circuit reviewed all of the points put forward by Burciaga in support of her pretext argument, and found none of them sufficient to support her claim of discrimination.

For example, although Burciaga listed a number of non-FMLA employees who had made errors but who were fired, the court found that those individuals were not “similarly situated” to Burciaga, because those employees did not have the same amount of experience as did Burciaga when their errors were committed.

One critical point raised by the court was that the company’s explanation for Burciaga’s firing remained constant throughout the process. According to the court: “When an employer does not waiver from its explanation, the circumstances militate against a finding of pretext.” Because the company documented the performance issues, and remained constant in its assertion of those issues as the basis for Burciaga’s firing, it was able to overcome Burciaga’s pretext argument.

This is an important take-away for employers. Requesting FMLA leave does not give an employee greater protection against firing for reasons unrelated to FMLA. However, when an adverse employment action is considered against an employee who ultimately may assert a legally protected status — including FMLA protection — attention should be paid to the existence of supporting documentation, the objective factual background, and the consistent application of discipline.

Once the basis for the proposed disciplinary action is determined to be appropriate, the action should be taken and accurately documented, in order to avoid a “shifting” explanation that could trigger an argument of pretext, and an ultimate finding of legal liability.