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Bad timing + bad e-mail = valid claim

Oklahoma Employment Law Letter - November 1, 2009

By Kristin M. Simpsen

The following is a cautionary tale to employers about the risks of terminating a worker who is on leave under Family and Medical Leave Act (FMLA). In short, too many questions remained about the real reasons for the employee’s termination. Inconsistencies about her performance, lack of documentation, and failure to follow the company’s termination procedures left the employer exposed to liability.


Medical leave runs long
Nydia DeFreitas began working for Horizon Investment and Management Corporation in June 2004. Early in her career, she was recognized as an “outstanding leasing agent” and a “dynamic employee.”  In summer 2005, she was offered a job with another company at a significantly higher salary. Horizon offered her a raise and a promotion to stay. DeFreitas stayed and was put in charge of three of Horizon’s most difficult properties. In November, she was told she was doing a “dynamite” and “excellent” job.

That same month, DeFreitas informed Horizon she was having a hysterectomy and would need to take up to six weeks of leave to recover. There was no discussion about whether the leave would be paid, she wasn’t informed of her FMLA leave rights, and Horizon’s company manual didn’t include a section on FMLA leave. Nevertheless, she was allowed to take a leave of absence from work. She originally planned to return after four weeks. However, she didn’t recover as quickly as anticipated and ended up taking the full six weeks.


Unhelpful e-mail and documentation
The day after DeFreitas informed Horizon of her need to take more leave, the president of the company terminated her by e-mail. The e-mail was titled “Ecclesiastes 3” and read as follows:

I have agonized over this decision for weeks. It has been difficult because the Nydia I know or thought I knew is not the same Nydia that so many others feel they know on site. What I truly hope is that the Nydia I know, will remain my friend, a strong wife and mother to her family and someone that will continue to grow and reach the personal and family goals that you set for yourself.

We have uncovered so many different issues at both Edison and Park Place, that are expensive mistakes to the owner and our management company, that we need to not just make a change from working at Park Place, but from working at Horizon. You are very talented and I know, when back in the pink of health, will bounce back and secure another job without even a glitch.
. . .
I do not think that I need to list reasons, my desire is not to add salt to this wound, but would like the opportunity to visit with you one on one in the future and allow me to make some suggestions that could make your next job more comfortable.

DeFreitas’ termination didn’t follow Horizon’s discipline and termination procedures. Although the company claimed she had several performance deficiencies, there were no written warnings or other official documentation indicating that was the case. Negative evidence of her performance surfaced only after she took leave. Further, the deficiencies for which she was terminated were in direct conflict with the recommendation Horizon gave her prospective employer.

When DeFreitas’ prospective employer contacted Horizon, the president stated she was a “loyal hard worker” and the “best leaser he has known.” He commented that she got along “great” with her coworkers and superiors and that she left the company because of illness.


Here it comes
Following her termination, DeFreitas filed a lawsuit claiming she was fired in violation of her FMLA rights. She also claimed (1) her supervisor, who is a member of the Church of Jesus Christ of Latter-day Saints (LDS), fired her because she is Catholic and (2) she was subjected to a hostile work environment because she is not an LDS member — both violations of Title VII of the Civil Rights Act of 1964.

There are at least two different theories an employee can pursue when claiming a violation of her FMLA rights. The first is a retaliation claim, which makes it “unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful” by the FMLA. The second is an interference claim, which makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise” FMLA rights. DeFreitas pursued an interference claim. To establish interference, she had to show:

  • she was entitled to FMLA leave;
  • an adverse action by her employer interfered with her right to take FMLA leave; and
  • the adverse action was related to the exercise or attempted exercise of her FMLA rights.

When an employee’s termination occurs while she is on leave, the timing can show that the adverse action was “related to” the exercise of her FMLA rights. An employee can succeed on an FMLA interference claim regardless of the employer’s intent. However, if the employer can show that it would have dismissed the employee even if she hadn’t taken or requested FMLA leave, it can overcome the claim.

The court was swayed by DeFreitas’ termination occurring just one day after she told Horizon she would need additional time off. Also critical was the fact that the company told her prospective employer that the reason for her separation was illness. After evaluating each of Horizon’s stated reasons for her termination, the court determined that a jury should decide whether the real reason for DeFreitas’ discharge was her use of medical leave. DeFreitas v. Horizon Invest. Mgt. Corp., 577 F.3d 1151 (10th Cir., 2009).


What are the takeaways?
When communicating with an employee, bad timing and poor word choice can expose you to liability and make your legal defense much more difficult should litigation ensue. It’s vital for managers to perform honest and consistent reviews. Any performance issues should be properly documented, and recommendations to prospective employers should be reflective of that documentation. Perhaps most of all, this case demonstrates the perils of terminating an employee who is on approved leave.