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Seventh Circuit OK's Firing for Failure to Sign Improvement Plan
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If you've been paying attention, you already know that the Family and Medical Leave Act (FMLA) -- like many discrimination laws -- prohibits retaliation against an employee who exercises her FMLA rights. A recent Seventh Circuit decision found that an employee wasn't retaliated against for taking FMLA leave and upheld two principles, one well established and another more nuanced.
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Dynetta Cole worked as a receptionist in the Governor's Office of Citizens' Assistance. Her duties included responding to letters from constituents, copying and filing mail, and managing correspondence concerning child support. She worked in Springfield and reported to Jay Brown, who also worked in Springfield. Brown's boss was Cory Verblen, who was stationed in Chicago.
Brown and Verblen had received numerous complaints about Cole's performance. Not only was she frequently absent, but coworkers also complained of personality conflicts with her. Further, Brown and Verblen had disagreements with her over her doctor's appointments and her schedule for picking up her children from school.
Cole was injured in an auto accident in November 2005, and a week later, she was granted medical leave under the FMLA. Her FMLA paperwork stated that her leave was to end "on or about 12/2005." Even before her return, however, Verblen contacted her, complained that her work was "piling up," and insisted that she return. Cole's doctor therefore permitted her to return on a part-time basis on December 5, 2005.
Later that month, after Cole arrived tardy to work a couple of times, Brown urged Verblen to take disciplinary action against her. The result was an "employee improvement plan," crafted by Verblen and Brown that was presented to Cole on December 22.
Get with the program
The employee improvement plan identified three areas in which Cole had to improve: attendance, attitude, and job performance. With respect to attendance, the plan stated that she needed to better communicate with her superiors when she would be absent. To that end, the plan instructed her to write out her schedule on a daily and weekly basis and provide copies to Verblen and Brown.
With respect to attitude, the plan noted that constituents and staff had complained that Cole was "rude and unhelpful." Accordingly, the plan instructed her to "become more aware of her tone" and "become a better listener." Although the plan noted that her job performance was generally satisfactory, it stated that she needed to pay special attention to keep up with her filing and alleviate the strain on coworkers, especially in light of her part-time status after the car accident. To that end, it required her to plan her day and be more organized.
Although Cole was told that she would be fired if she didn't sign the employee improvement plan, she refused. Rather than sign it, she sent a letter to Verblen and Brown on December 28 asserting that she had performed satisfactorily and citing her latest performance evaluation. She didn't acknowledge any deficiencies and blamed "cultural difference" for any problems. Turning the tables on Verblen and Brown, she recommended that the state provide multicultural and conflict-resolution training.
In response to the letter, Verblen told Cole by phone that although he appreciated her suggestions, she would still be fired if she didn't sign the improvement plan. She again refused and was terminated.
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See you in court
Cole then filed suit in the U.S. District Court for the Central District of Illinois against the state and her superiors, claiming they retaliated against her for exercising her FMLA rights. (She also asserted and abandoned claims under the First Amendment to the U.S. Constitution and under Illinois whistleblower laws, but they don't concern us here.) The lower court entered judgment against Cole before trial, and she appealed.
The question for the Seventh Circuit was whether Cole was terminated in retaliation for exercising her FMLA leave rights. She was fired within two months of taking FMLA leave. Yet she was unable to point to any evidence that her termination was caused by anything other than her steadfast refusal to sign the employee improvement plan. Because there was no such evidence, the court relied on the well- established principle that "suspicious timing alone rarely is sufficient to create a triable issue."
According to Cole, however, that analysis doesn't go far enough because it presumes that her termination was the only adverse action she suffered. To the contrary, she urged the court to find that the improvement plan itself constituted an adverse action. She argued that merely being presented with the employee improvement plan created a claim of retaliation.
In support of that argument, Cole cited a U.S. Department of Labor (DOL) regulation providing that an employer may not "use the taking of FMLA leave as a negative factor in employment actions, such as . . . disciplinary actions." Based on that regulation, she argued that any disciplinary action an employer takes on account of FMLA leave -- no matter how significant -- can support a viable retaliation claim under the FMLA.
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Material matters
Not so, said the Seventh Circuit. To support a retaliation claim, the employee must show that the complained-of adverse action was "materially adverse." The materiality requirement is intended to "separate significant from trivial harms." To be material, an adverse action must be one that would dissuade a reasonable employee from exercising her rights under the law.
Was the adoption of the employee improvement plan in this case a materially adverse action? In other words, would it cause a reasonable employee to forgo her rights under the FMLA? Not at all, said the court. The plan's requirement that Cole submit daily and weekly schedules was "not so oppressive that a reasonable employee would be discouraged from taking FMLA leave." Likewise, its instructions that she become more aware of her tone and be a better listener were minor -- not material -- conditions.
Put another way, nothing in the plan deprived Cole of responsibility, hours, pay, or any other benefit. Case dismissed. Cole v. State of Illinois, No. 08-1754 (7th Cir., Apr. 7, 2009).
Here's the plan
What does this decision mean for employers? It's reassuring to hear the Seventh Circuit once again confirm that the mere fact that an adverse action closely follows an employee's exercise of statutory rights doesn't by itself establish retaliation. Even more encouraging was the court's clear signal to employers that imposing a performance improvement plan -- at least one similar to the plan given to Cole -- isn't a materially adverse action that will support a retaliation claim. Employers, you're free to require an errant employee to submit to an improvement plan as a condition of continued employment.
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Copyright 2009 M. Lee Smith Publishers LLC. ILLINOIS EMPLOYMENTLAW LETTER . ILLINOIS EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Illinois employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.
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