South-Western Legal Studies in Business

FMLA Does Not Protect Problem Employee against Dismissal
Description Appeals court held that an employee could be terminated while on FMLA leave if the employer can show that the decision was made independently of the fact of FMLA leave. The law does not protect poor performance.
Topic Employment Law
Key Words Family and Medical Leave Act; Termination; Violation
C A S E   S U M M A R Y
Facts Throneberry worked for a hospital for ten years when her father died and she was also divorced. After that, her mental health deteriorated. She missed work and was unproductive and disruptive when at work. She forgot to read important materials and improperly billed Medicare for $40,000 worth of services not provided. She was taking Xanax, Prozac, and Luvox to deal with emotional problems. Her supervisor told her to take a month paid sick leave to have time to deal with her problems. Other nurses complained that Throneberry continued to come to the hospital regularly and disrupt things. Her supervisor asked her to resign, which she did, providing her with pay and benefits through the end of the year. She then sued the hospital, contending that her FMLA rights had been violated, as she had been tricked into resigning while she was on FMLA leave. The trial court held for the hospital. Throneberry appealed.

Affirmed. The FMLA does not impose strict liability for all interferences with FMLA rights. An employer who interferes with those rights will not be liable if it can prove it would have made the same decision had the employee not exercised FMLA rights. The Act does not force an employer to retain an employee on FMLA leave when the employer would not have retained the employee had the employee not been on FMLA leave. Throneberry was not fired for exercising her FMLA rights; she was asked to resign because of her performance.

Citation Throneberry v. McGehee Desha County Hospital, ---F.3d--- (2005 WL 820313, 8th Cir., 2005)

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