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Federal Court Decision Highlights Challenges of Dealing With Employee Performance Issues While an Employee Is on FMLA Leave

Addressing performance issues of employees who are on leave under the Family and Medical Leave Act (FMLA) can present challenges for employers. An employer may discover, for instance, that prior to going out on FMLA leave, an employee engaged in misconduct or performed his or her job in an unsatisfactory manner. A Texas federal court’s recent decision in Kibbie v. Hays Consolidated Independent School District, No. A-19-CV-(April 7, 2020), highlights the difficulty of confronting performance issues discovered while an employee is out on FMLA leave.


In December 2009, the Hays Consolidated Independent School District hired Rita Kibbie as a benefits coordinator in its human resources (HR) department and in August 2014 promoted her to the position of director of benefits for the district. In January 2015, the district hired a new HR director. Prior to the hiring of the new HR director, Kibbie had received good performance evaluations. In 2017, however, the new HR director gave her an “unsatisfactory” performance rating. Kibbie challenged the evaluation and the district changed the rating to “satisfactory.”

In November 2017, Kibbie notified the district that she would need to take FMLA leave for surgery to treat complications of cerebral palsy. The anticipated period of leave was to run from December 15, 2017, to March 1, 2018. In February 2018, while Kibbie was on leave, the HR director sent Kibbie a letter advising her that during her absence, the district had found “‘several performance concerns’” indicating that she had not been satisfactorily performing her job. In particular, the district asserted that she had failed to read 2,700 emails, mishandled the benefit accounts of numerous employees, and failed to pay vendors. The letter also informed Kibbie that upon her return from leave, she would be given an opportunity to respond to the allegations. A week later, the district posted Kibbie’s job as “vacant” on the district’s website. In the interim, the HR director who had sent the letter to Kibbie left her employment with the district, and the district hired a new HR director.

Kibbie returned to work on April 2, 2018, and the district immediately placed her on administrative leave pending the result of an investigation into the performance issues identified during her FMLA leave. Kibbie contended that the district did not give her the opportunity to respond to the performance issues raised in the February 2018 letter.

On April 13, 2018, the district sent Kibbie a letter terminating her employment, indicating that the district’s investigation had confirmed her failure to perform some of her duties and responsibilities as the director of benefits.

On April 8, 2019, Kibbie filed an employment discrimination lawsuit alleging, among other claims, that the district had retaliated against her for taking FMLA leave. On February 5, 2020, the district filed a motion for summary judgment, seeking dismissal of Kibbie’s claims, including the FMLA retaliation claim.

The Court’s Analysis

The court evaluated the evidence surrounding the district’s motion for summary judgment. In so doing, the court found that Kibbie had established a prima facie case of FMLA retaliation because of the temporal proximity between her leave and subsequent termination and because of the fact that her position had been posted as vacant while she remained out on FMLA leave.

While the court found that the district had articulated a legitimate, nonretaliatory reason for terminating Kibbie’s employment—namely, Kibbie’s alleged poor performance—the court also observed that Kibbie had presented evidence to support a finding that her discharge had been a pretext for discrimination, including (1) the temporal proximity between the leave and her discharge; (2) the district’s posting of her position as vacant while she was on leave (a fact, the court found, that was “consistent with Kibbie’s arguments that the [d]istrict never intended to reinstate her after she returned from leave”); (3) that she was not given an opportunity to respond to the issues raised in the February 2018 letter; (4) that Kibbie denied the substantive allegations regarding her job performance; and (5) ancillary testimony that the former HR director harbored “significant personal animosity toward Kibbie” and was unhappy that another individual was on FMLA leave. Based on this evidence, the court denied the district’s motion for summary judgment on Kibbie’s FMLA retaliation claim.

Key Takeaways

One key takeaway from this case is to avoid engaging in actions inconsistent with either employers’ self-imposed obligations in dealing with an employee on FMLA leave or actions inconsistent with employers’ legal obligations under the FMLA. Inconsistency can cause jurors to doubt the veracity of the employer and increase the likelihood of an adverse verdict.

The district’s posting of the plaintiff’s job as vacant while the employee was on leave was inconsistent with obligations under the FMLA. The court considered this as supporting the establishment of a prima facia case of discrimination and creating a fact issue of pretext. Judges and juries would certainly wonder about the thought process of an employer that posts a job as vacant when it should not yet be vacant because of the employer’s reinstatement obligation under the FMLA.

Another inconsistency was the district’s apparent failure to follow through on the commitment to allow the plaintiff to respond to the misconduct charges against her. The district specifically indicated to the employee that she would be provided an opportunity to respond to the misconduct allegations against her. The opinions suggest that this did not happen. Judges and juries will likely not look favorably upon an employer that fails to keep a written commitment to an employee, especially where it involves a fairness notion like having an opportunity to defend oneself against misconduct allegations. This type of inconsistency could cause a jury to question the motives of an employer.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 142


About this Author

Lawrence D. Smith, Ogletree Deakins, equal employment opportunity lawyer, unfair labor practices attorney
Office Managing Shareholder

Mr. Smith’s practice at Ogletree Deakins primarily involves the defense of employers in labor and employment related litigation before state and federal courts and administrative agencies. Mr. Smith represents employers in claims involving equal employment opportunity law, unfair labor practices, wage and hour issues, unemployment compensation, wrongful discharge, state law tort and contract claims, occupational safety and health matters as well as class action litigation under the Fair Labor Standards Act. Mr. Smith has tried cases involving claims of sex, race,...