A former team lead for a Philadelphia Target sued the nationwide retailer claiming that his employment was unlawfully terminated while he was on leave for his mental health (Langner v. Target Corp., Reed Group and Marquita Johnson, No. 2:21-cv-00355 (E.D. Penn., Jan. 27, 2021)).
The team lead said in his complaint that he was out on leave covered by the Americans with Disabilities Act (ADA) because of stress and anxiety resulting from his toddler’s leukemia diagnosis and treatment. During his time away, he logged onto his leave account and discovered that his employment had been terminated. The plaintiff was told that he had been let go because an investigation into an incident with a subordinate revealed that he had not met with the subordinate or given the subordinate a final warning. The team lead denied the accusations in his court filing, claiming Target’s stated reasons for firing him were a pretext.
The plaintiff claimed interference and retaliation under the Family and Medical Leave Act (FMLA); failure to accommodate, discrimination and retaliation under the ADA; and violations of Pennsylvania state law. Target did not respond to a request for comment by press time.
Employers may need to exercise caution when disciplining a worker who is exercising a job-protected right. But a growing body of case law supports employers’ needs to administer discipline in such scenarios. In 2010, the 11th U.S. Circuit Court of Appeals noted it would be “laughable” for courts to deny employers the right to terminate a worker on FMLA for misconduct (Schaaf v. SmithKline Beecham Corp., d.b.a. GlaxoSmithKline, 602 F. 3d 1236 (11th Cir. 2010)).
More recently, the 10th Circuit ruled in 2018 that an employee out on FMLA leave wasn’t immune from discipline after his supervisor monitored his email while he was away and discovered that the man had told a customer that the customer’s order was being rushed through when it had not been entered into the system. When asked, the man denied having told the customer that the order was in the process until the supervisor revealed that he had reviewed the worker’s email.
However, attorneys disagree as to whether an employee should be disciplined while on leave. Some suggest that, if the employee goes out on leave before the discipline can begin, employers should present dated documents and disciplinary memorandum to the employee when the leave ends. Other attorneys say that employers can terminate a worker’s employment while on leave and suggest that, while there’s nothing that says an employer has to talk to the employee, “it’s important to be transparent about why you’re doing what you’re doing so that [the employee] can at least second-guess their initial feeling that what [the employer] is doing is retaliatory,” one source previously told HR Dive.
If discipline must occur during a worker’s leave or shortly after, it’s important for the employer to have a clear record of facts that justify the adverse employment action, experts say. After all, timing alone can establish a prima facie case of retaliation.