Employee’s Inevitable Firing Negates FMLA Claim, 10th Circuit Holds

An employee who would have been fired even if he had not requested leave under the Family and Medical Leave Act cannot proceed to trial on his interference or retaliation claim under the statute, the 10th U.S. Circuit Court of Appeals held today.

Affirming a lower court, the appeals court said that Frank Brown, a customer service operations analyst for ScriptPro LLC did not have a triable FMLA interference or retaliation claim, since the employer presented undisputed evidence that he would have been fired even if he hadn’t requested family-related time off two days earlier.

The judges said that Brown had received a negative performance review and that following his negative annual evaluation there were additional complaints about his “belligerence” toward customers.

The court said it was not questioning the wisdom of managements’ response but only whether it had come forward with evidence suggesting it would have terminated Brown irrespective of his leave request.

Since it had, the claim properly was dismissed, the appeals court held.

Here’s a link to the full ruling.

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