October 21, 2026
Coincidental Timing or Unlawful Retaliation?
In his two years with his employer. a company Vice President received performance reviews with ratings of “Exceeds” or “Consistently Meets” expectations. Seven months prior to his separation, he received a performance bonus of more than $43,500, about 18% of his annual salary.
But nine days following his return from FMLA and state-provided family leave for the birth and care of and bonding with his new child, he received his first unsatisfactory performance review. Six days after that, the new father is fired for “shifting business needs” and “role realignment.” (Yes, that shifting, not shifty). The former employee then sued for FMLA interference, retaliation, and several claims under state and local law.
In short, the former employee alleges, “The sequence and timing of events…give rise to a strong inference that [his] protected leave, and his status as a new parent and caregiver, were motivating factors in the Defendants’ decisions.”
The case has just been filed so stay tuned for the decision. In the interim, consider the following:
Protect yourself from individual liability! The employee sued his former supervisor in her individual capacity as well as the employer. The claim points out that the supervisor “personally made or participated in the decisions” regarding his unsatisfactory performance review and discharge. Talk to HR before taking an adverse employment action against an employee, particularly if it follows an employee’s protected activity!
Avoid the element of surprise. The unsatisfactory performance review rated him as “not meeting expectations consistently.” Yet the former employee alleges this was the first he heard of it. There was no prior coaching, counseling, or corrective action. Employees should not be surprised by an adverse employment action. If performance is not meeting expectations, coach the employee before you adversely impact their pay or terminate their employment.
Avoid even the appearance of retaliation. The former employee cites that the supervisor basically snubbed him upon his return, abruptly dismissing him saying she “did not have time to speak with him.” That may seem trivial but it’s one more thing that gives the appearance of animus or retaliation. Even if you are frustrated when an employee takes time off from work, maintain civility, collegiality, and professionalism.
Missed claims? The HRBP squeaked this one out. The claim cites her as participating in the discharge meeting but is not named as a defendant. I was also expecting this employee to add sex discrimination to this claim, alleging he was discriminated against because he was a male caregiver. The employer dodged the bullet on that one.
