Suspicious Timing of Performance Management Supports FMLA Retaliation Claim


An employee’s claim of retaliation under the Family and Medical Leave Act was supported by the suspect timing of her employer’s performance management activities following her notice to management of her need for leave in the future, according to the U.S. Court of Appeals for the Eleventh Circuit.

In Munoz v. Selig Enterprises, Inc., the employee had chronic health issues for which she was often absent or tardy. She was not provided with notice of her FMLA rights, but was given the leave, and the Eleventh Circuit found that therefore there had been no interference with her FMLA rights. It found merit to her retaliation claim, however. The employee had given notice of her need for future leave. Although she did not provide details as to the timing and duration of such leave, the Eleventh Circuit found that those details were not required for an unforeseeable need due to a condition with sudden, acute flareups. Moreover, just days after she notified her employer of her need for future leave, her managers downloaded software onto her computer to monitor her off-task time. And three weeks later, she was disciplined for her performance, including her attendance. The Eleventh Circuit found her managers’ numerous comments about her attendance and tardiness, as well as questioning whether she was truly sick, to be particularly problematic.

This case poses a warning to managers to be careful with comments about an employee’s attendance issues that may be connected to a serious health condition. In addition, although employers may certainly hold employees accountable for performance, they should be thoughtful about the timing of such activities.