Timing matters: Employee fired during FMLA leave for months-old problems

Though the following case is still in its infancy, it tees up several common concerns in employment litigation. A new supervisor arrives on the scene and starts pointing out performance problems for the first time (calling into question the veracity of the critique). The employee goes out on leave for medical conditions. The employer decides to fire the worker and points to performance issues that were addressed well before the leave began. Let’s look at the facts, as outlined by the U.S. 5th Circuit Court of Appeals in New Orleans (whose rulings apply to all Louisiana employers), and see what we can learn from them.

Employee granted leave . . . and then fired

James Hester worked for Bell-Textron, Incorporated, from August 1997 until December 2018 and held a variety of positions. He suffers from epilepsy (which causes him to have a series of grand mal seizures) and glaucoma. His wife has stage-four cancer, and he assists her by providing comfort and attending medical appointments.

In March 2017, Hester began reporting to a new supervisor, Vance Cribb, who was aware of the medical history. In June 2018, the supervisor issued Hester the first poor performance review of his career with Bell-Textron.

Then, in October 2018, Cribb issued Hester a final warning related to a part that broke during a testing procedure. The employee vigorously protested the final warning. He had to be escorted off the premises and was told to apply for an “employee assistance program” (EAP) based on his medical conditions.