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Leave of Absence Notation on Performance Review Enough to Revive FMLA Retaliation Claim

Recently, the Sixth Circuit Court of Appeals overturned a district court’s summary judgment ruling in favor of a Michigan employer, when the appeals court found that an employee provided enough evidence for a jury to determine whether she was subjected to retaliation for taking medical leave. Interestingly, one of the deciding factors was a “LOA” notation in the employee’s latest job performance review.

 
Plaintiff Susan Cutcher (possibly a long distance cousin of famed Ashton Kutcher), was a long time employee at a Kmart supercenter in Michigan, who began working at Kmart in 1984, but was terminated in December 2005 during a nationwide reduction in force (“RIF”). In
November 2005, however, Cutcher took a leave of absence, which qualified under the Family
Medical Leave Act (“FMLA”), to undergo surgery. Cutcher later filed suit against Kmart alleging that she was the victim of FMLA retaliation, because she had received a favorable performance review on November 15, 2005.
 
At the trial court, Cutcher demonstrated that she had repeatedly received “exceptional” (the highest rating) to “exceeds expectations” (second highest) ratings on her annual performance reviews since 2001. Although her November 2005 review did drop in rating from the previous year, specifically due to lower scores in the teamwork category, her customer service and demonstrated work habits categories remained high.
 
While Cutcher was out on medical leave, Kmart instituted a RIF. The RIF guidelines required supervisors to complete an Associate Performance Recap Form, which included the same categories for evaluation as the annual performance reviews. The form considered the employees’ most recent annual performance review in arriving at a total average score.
Additionally, the form included a comment section for supervisors to explain the reasons for any significant changes in the employees’ rating as compared to their annual performance review.
The evidence presented at trial showed that Cutcher’s Associate Performance Recap score was lower on average than her November annual performance review, which caused her to be included in the RIF. More importantly, in the comment section of the form, a Kmart supervisor wrote “Poor customer and associate relations. LOA.” Cutcher argued the LOA notation was the reason for her lower score as it referred to her taking a medical leave of absence under the FMLA. Kmart counter argued that it simply meant that she was on leave of absence and had to be terminated at a later date.
 
On appeal, the court found that a reasonable juror could believe Cutcher’s theory regarding the LOA comment and that her termination was based on taking FMLA leave. Kmart also failed to document any reasons for the lower RIF performance appraisal and admitted that nothing in Cutcher’s performance had changed in the 20 day period between her last annual review and the December recap review. Further, Kmart attempted to argue that one of Cutcher’s supervisors often scored associates higher than deserved on annual performance reviews to avoid confrontation. The Court rejected that argument as it pointed out that Cutcher had not received a single written or verbal reprimand regarding discipline. Ultimately, the appeals court overturned the summary judgment ruling in favor of Kmart and remanded the case to the district court for a jury to decide.
 
Employers should take from this case the importance of documentation during the annual performance review process. This task is something that should not be taken lightly as the consequences can often be costly. When supervisors complete annual performance reviews it is recommended that a comparison should be made of the previous annual review and documentation should be made for any significant changes. Clearly, notating any leaves of absence that could be construed as qualified under the FMLA, workers’ compensation, or the Americans With Disabilities Act, on a performance appraisal must be avoided at all costs.  Instead, this information should be documented in a separate health or medical file on the employee.
 
Supervisors should also be reminded that performance reviews should accurately reflect an employee’s job performance, because being “nice” in order to avoid confrontation only delays the inevitable and often makes the legality of an employer’s decision more difficult to prove.
© Copyright 2021 Butler, Snow, O'Mara, Stevens and Cannada, PLCC. All Rights Reserved.National Law Review, Volume , Number 153
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About this Author

Carlyle C. White, Employment Litigation Attorney, Butler Snow, Law Firm
Areas of Emphasis
  • Employment Litigation
  • Traditional Labor Law
Distinctions
  • One of Memphis’ Most Influential Black Attorneys, Memphis Minority Business Magazine, 2009
Education & Honors
  • University of Arkansas, J.D., cum laude, 2008
  • Board of Advocates
  • Mississippi State University, M.B.A., 2002
  • Tougaloo College, B.A., Economics, 2001
901-680-7335
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