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Dual Theories of Employee’s Misconduct Doesn’t Prove Employer Discriminated, 11th Circuit Rules

Dollar_General_storeA recent 11th Circuit Court of Appeals case is helpful in instructing how far an employer must go in stating why it chose to terminate an employee on Family and Medical Leave Act leave. Even though the employer in the recent case only narrowed its reasons down to two mutually exclusive ones, its good-faith investigation established a reasonable basis for concluding that the employee committed one of the two misdeeds, and, since either was enough to warrant termination, the employer’s action did not violate the law.

The events that happened to Kimberly Thomas that triggered this case were, in some ways, not uncommon. Thomas, a manager at a Dollar General store in Alabama, was terminated in the wake of a robbery at her store. The robbery had yielded an investigation by Thomas’ superiors and questions regarding two store employees’ completion of a mandatory online class regarding robbery prevention. The employer concluded that Thomas either took the course exam for the employees or made the employees take the test “off the clock.” Either way, the employer reasoned that Thomas had violated company policy and ended her employment.

What made her case somewhat unusual was that all of this occurred while Thomas was absent from work on FMLA leave following a double mastectomy. Based upon those facts, Thomas sued her employer for disability discrimination in violation of the Americans with Disabilities Act, as well as interference and retaliation in violation of the FMLA.

When you’re advancing a disability discrimination case, the third (and often most closely contested) element is proving that the legitimate, non-discriminatory reason the employer has provided to the court for your termination or discipline was merely a pretext for illegal discrimination. The pretext factor was what doomed Thomas’ ADA case. Even though Dollar General offered two mutually exclusive theories of the transgression that triggered the manager’s termination, this alone did not amount to a pretext. The employer had conducted a good-faith investigation that produced reasonable grounds for believing that Thomas committed one misdeed or the other. Since either one was alone enough to allow for the manager’s termination, it wasn’t necessary for the employer to investigate further to determine which misdeed was the one that actually occurred.

Although the Dollar General employee who conducted Thomas’s investigation made some comments about how the manager’s “personal situations” affected her job performance, these weren’t enough to prove discrimination either. The law says that stray comments unrelated to the ultimate employment decision are not, by themselves, adequate to show the sort of pretext needed in a discrimination case.

The same evidence ultimately defeated Thomas’s FMLA interference claim, as well. The law says that, if an employer would have terminated an employee even in the absence of that employee’s FMLA leave, then the employee’s FMLA interference claim fails. In other words, because Dollar General terminated Thomas for reasons wholly unrelated to the employee’s FMLA leave, the employee’s interference claim could not succeed.

When an employer terminates an employee shortly after she avails herself of FMLA leave, this may be proof of retaliation in violation of the FMLA. In Thomas’ case, even though her termination took place shortly after she went on FMLA leave, her retaliation claim failed. Much like a discrimination claim, an FMLA retaliation claim requires the employee to show that the employer’s non-discriminatory reasons for acting were just a cover for retaliation. Thomas was never able to show that the employer’s stated reasons were not legitimate in her case.

If you’re facing a situation involving the need to terminate an employee with a disability or on FMLA leave, it is very important to understand exactly how far the law does or does not go in its demands of you. For thoughtful analysis of your case and skilled advocacy, talk to the experienced Georgia disability discrimination and FMLA attorneys at Mays & Kerr. Our attorneys have extensive experience assisting both employers and employees when it comes to discrimination and retaliation cases.

To speak with one of our lawyers about your case, call 1-877-986-5529.

More blog posts:

Temporary Employees and FMLA Leave in Georgia, Atlanta Employment Attorneys Blog, Feb. 10, 2016

Sixth Circuit Says City Allowed to Suspend Police Officer After Brain Surgery, Atlanta Employment Attorneys Blog, Dec. 18, 2015