Tenth Circuit dismisses FMLA claim by employee who was fired while on FMLA leave

published in Oklahoma Employment Law Letter | June 1, 2012

In a case recently decided by the U.S. Tenth Circuit Court of Appeals (whose rulings apply to all Oklahoma employers), the timing of an employer’s actions might concern even a seasoned HR professional—at least at first glance. The case involved an employee who sued his former employer, alleging that his termination violated the Family and Medical Leave Act (FMLA)—the federal law requiring covered employers to provide eligible employees up to 12 weeks of unpaid leave for qualified medical and family reasons. The Act further ensures that an employee’s position with the employer will not be jeopardized for exercising his right to take leave.


In 2004, Michael Sabourin was hired as a full-time program manager for emergency preparedness in the University of Utah’s Department of Environmental Health and Safety (EHS). His job entailed various responsibilities, including managing U.S. Department of Homeland Security (DHS) grants, which the university used to fund his salary and benefits.

In April 2006, Sabourin’s supervisor, Marty Shaub, requested that the university’s internal audit department review the EHS’s administrative practices in handling DHS grants. Later that month, the audit department provided Shaub a report indicating likely “systematic problems” resulting in mistakes made on individual grants.

When Shaub received the report, she requested that Sabourin respond to the findings “as quickly and efficiently as possible.” After several weeks, she became concerned that she still hadn’t received a response. She called a meeting with Sabourin, who became defensive when asked for updated information but agreed to provide a draft memo response within three or four days.

On May 31, Shaub notified the university’s HR department that she intended to impose a reduction in force (RIF) that would eliminate Sabourin’s position on June 30. She cited a depletion of grant money as the reason for eliminating his position. On June 5, before receiving notice of the RIF, Sabourin told Shaub that he intended to take FMLA leave for unforeseen childcare needs.

Sabourin testified at trial that Shaub appeared “obviously annoyed” at his decision to take FMLA leave and asked him several questions concerning his progress on his response to the internal audit report. The day following that conversation, Shaub informed Sabourin that she was changing his workweek from Sunday through Thursday to Monday through Friday. Allegedly, she was unmoved by Sabourin’s response that his childcare needs would be better met under his previous schedule.

Sabourin was approved to start FMLA leave on June 9. At trial, he testified that Shaub “went ballistic” and “exploded’ when she found out about his leave and told him that she didn’t “think it’s important enough for you to leave. You need to be answering the audit.”

After Sabourin began his leave, Shaub went to his office to gather the necessary files to complete the audit response. However, when she got there, she found that he had emptied his office and removed all his electronic files from the university’s server. At a June 13 meeting attended by both parties and the university’s HR department, Sabourin provided certain files pertaining to the audit documents previously requested by Shaub, at which time he was notified of the RIF.

Sabourin declined to provide many of the other files related to the internal audit despite repeated requests by Shaub and warnings that the university would file criminal charges if the files were not returned. On June 30, Shaub notified Sabourin that she had decided to terminate his employment for various reasons, mainly for (1) his failure to assist with the audit response, (2) removing university files and electronic property and deleting files and supporting software from his university-issued laptop before returning it, and (3) potentially causing the university to lose more than $350,000 based on his obstruction of the audit.

Sabourin responded by filing suit against the school, alleging retaliation for exercising his FMLA rights. The trial court dismissed the case in favor of the employer, and Sabourin appealed to the Tenth Circuit.

Court’s analysis

To prevail on his FMLA retaliation claim, Sabourin had to show the following:

  1. He was entitled to FMLA leave.
  2. The university’s adverse action interfered with his right to take FMLA leave.
  3. The school’s action was related to the exercise of his FMLA rights.

Even if Sabourin could prove those elements, the employer would prevail if it could show that he would have been terminated regardless of his FMLA leave. The court initially discussed the overlap in timing between Sabourin’s FMLA leave and his discharge but, after reviewing all the evidence, concluded that the university had provided sufficient evidence of his insubordination to support his termination on those grounds. Further, the court noted that Shaub decided to eliminate Sabourin’s position and terminate his employment before she learned that he was planning to take FMLA leave. Sabourin v. University of Utah (No. 10-4150, April 6, 2012).

Bottom line

To prevail on similar claims, you should ensure that your supervisors and managers document the content and timing of all actions related to disciplining or terminating employees. Proper documentation of the timing of certain employment decisions can be used to defend against similar retaliation claims related to actual or constructive knowledge of requests for FMLA or other protected leave. Documenting the legitimate reason for an employee’s discipline or discharge further ensures a solid defense against a retaliation claim because it allows you to show that the employee would have been disciplined or fired regardless of whether he took protected leave or participated in protected activities.