FMLA Does Not Protect Poor Performance

Saturday, May 25, 2002 | 0

In February of this year the U.S. Court of Appeals for the Tenth Circuit issued an opinion that has narrowed the protection afforded to employees under the Family and Medical Leave Act (FMLA).

In McBride v. Citgo Petroleum Corp, 281 F.3d 1099 (10th Cir. 2002), the court held that the FMLA does not protect workplace performance. Consequently, the court ruled, employers may still terminate employees protected by the FMLA for work performance problems caused by their illness or condition. Furthermore, employees have no right under the FMLA to show improved performance once returning from leave.

The facts are:

Ms. McBride had been CITGO employee since 1985. In 1994, Ms. McBride was diagnosed with Attention Deficit Disorder; and, in 1998, she was diagnosed with severe depression. At all relevant times, she was under the care of a physician. Ms. McBride was transferred to CITGO's Health Services Department in 1994 and began reporting to James Bruce in 1998.

Between the beginning of February and the end of March 1999, Mr. Bruce met with Ms. McBride four times regarding deficiencies in her work performance including failure to process invoices within thirty days, failure to report to work on time, and failure to be at her desk during working hours.

On March 31, 1999, Mr. Bruce presented Ms. McBride with a letter that pointed out several areas in which her work performance had improved but reiterated the need for improvement in other areas.

The letter warned that "[f]ailure to achieve immediate and sustained improvement will result in future discipline up to and including termination."

In March of 1999, Ms. McBride's depression became totally debilitating. She went to her physician on Friday, April 2. On Monday, April 5, she brought to work a note from her doctor necessitating a medical leave of absence effective immediately. Ms. McBride returned to work on June 1, 1999.

During her medical leave, Mr. Bruce discovered several problems with Ms. McBride's job performance of which he was not previously aware. A number of unprocessed invoices were found at Ms. McBride's desk that dated back several months and had not been timely paid. Some invoices were from a vendor whose services certain employees were no longer receiving, but Ms. McBride had failed to remove the names of those employees from the list. CITGO, consequently, was being billed for services that those employees were not receiving.

Ms. McBride was not notified of the discovered work deficiencies while she was on medical leave. On the day she returned, Mr. Bruce and Ms. McBride's Human Resources Representative had a meeting with Ms. McBride in which Mr. Bruce informed her of the deficiencies discovered in her absence and asked for an explanation. When she failed to give a satisfactory answer, she was sent home with pay. On June 3, 1999, Ms. McBride was notified that she had been discharged from CITGO effective June 2, 1999.

The court, after summarily dismissing McBride's challenge of the trial court's summary judgment of her ADA claim for failure to exhaust administrative remedies, concludes on the FMLA issue:

"While it may be true that the problems were a result of her illness, the FMLA does not protect an employee from performance problems caused by the condition for which FMLA leave is taken, nor does it require that an employee be given an opportunity to show improved job performance when not ill. The FMLA only protects an employee's right to request and take leave while ill."

The case can be reviewed in its entirety at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=10th&navby=case&no=015039.