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Sick of Excuses: Sixth Circuit finds sick leave notices not disciplinary in nature

In Fields v. Fairfield County Board of Developmental Disabilities, the Sixth Circuit recently held that sick leave usage notices were not disciplinary in nature. As a result, an administrative assistant with performance issues failed to establish a causal link between her Family and Medical Leave Act leave and the non-renewal of her employment contract. The case was dismissed and upheld on appeal.

From March 2003 until June 2007, Evette Fields worked as an administrative assistant to John Pekar, the Fairfield County Board of Developmental Disabilities’ Superintendent. From August 2005 to March 2007, Fields was notified of, or disciplined for, various performance deficiencies.

In September 2005, the board adopted a formal plan to address absenteeism. The plan evaluated sick leave usage quarterly and established four levels of sick leave usage that specifically excluded FMLA leave. Under Levels 1 and 2, an employee received a notice regarding the number of absences, but no disciplinary action would be taken until sick leave usage reached Levels 3 and 4.

Fields initially received three Level 1 sick leave usage notices but her absences were retroactively designated as FMLA after she provided medical documentation. Fields later received more Level 1 sick leave notices, which were again retroactively designated as FMLA after Fields provided proper medical documentation.

On March 21, 2007, Fields was informed that her contract would not be renewed. Fields was also provided with a performance evaluation, in which Pekar noted all of Fields’ performance deficiencies. 

Fields filed suit against the board, asserting that it had unlawfully used FMLA absences as a negative factor that played a part in her discharge, discharged her in retaliation for taking FMLA leave, disciplined her and discharged her for her complaints regarding the manner in which her FMLA absences were treated, required her to complete work while on FMLA leave, and discouraged her use of FMLA leave. Fields subsequently amended the complaint to include claims of age and/or gender discrimination.

After the District Court granted summary judgment to the board, she appealed to the Sixth Circuit, which found that Fields could not establish a causal connection between her FMLA leave complaints and the non-renewal of her contract. The court found that the leave notices were not considered disciplinary under the policy. The court also held that Fields was unable to establish that one of the board’s reasons for not renewing her contract – her job performance – was a pretext (i.e., a cover-up) for an unlawful reason.

While the result is good for employers, it underscores the need for employers to be mindful that they cannot use FMLA leave as a negative factor in employment actions. In this case, the board had well-documented the employee’s numerous performance issues, which helped prevent her from proving that the true reason for the employment decision was discrimination or retaliation.

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