By: Jarrad Wright
A recent Fourth Circuit opinion is a reminder for all employers to thoroughly document problems with employees before making firing decisions. In a two to one decision, a Fourth Circuit panel on July 1, 2020 upheld the decision of a Virginia federal district court judge to disregard a jury verdict in favor of a former employee who had brought a wrongful termination claim pursuant to the Family Medical Leave Act (“FMLA”).
The case, Fry v. Rand Construction Corp., No. 18-2083 (4th Cir. 2020), involved Arlene Fry’s (“Fry”) suit against her former employer, Rand Construction Corporation (“Rand”), for several claims, including firing her for taking leave under the FMLA. Among other protections, the FMLA provides covered employees with twelve weeks of leave during any twelve-month period for family related reasons or for an employee’s serious health condition. After taking leave, employees are entitled to return to their prior position or an equivalent position.
Fry had worked as an administrative assistant for Rand’s CEO for several years before tension in their relationship developed. During the trial, Fry’s counsel argued that shortly after Fry had taken two weeks leave for a medical condition, the CEO complained that Fry had been on a cruise instead of medical leave. Fry later filed with the company two complaints that her FMLA rights were violated, and she was fired the day after filing her second complaint. Following the completion on Fry’s case-in-chief and before Rand presented its evidence, Rand moved for judgment as a matter of law, arguing that there was insufficient evidence to go forward with the trial. While District Judge Anthony Trenga expressed reservations about the lack of evidence, the trial proceeded, and the District Court stated it would decide the motion after the trial verdict if necessary.
Rand’s case involved putting on extensive evidence of prior documented problems with Fry’s work that existed before Fry had taken FMLA leave or had notified her employer of her health problems. The information submitted at trial included emails from the CEO to human resources personnel and the Chief Operating Officer complaining about Fry’s lack of diligence in keeping the CEO informed of changing appointments. Rand also put on evidence of the conduct that occurred after the FMLA leave occurred.
Notwithstanding this evidence, the jury entered a verdict in favor of Fry for the FMLA claim in the amount of $50,555, and rejected the remaining claims. Thereafter, Judge Trenga granted Rand’s motion for judgment as a matter of law and set aside the verdict. Applying the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the District Court found that Rand had established a legitimate nondiscrimatory reason for terminating Fry, namely her job performance, and held that Fry had “failed to introduce evidence from which a jury could reasonably find that Rand’s proffered reason was untrue or pretext.”
The Fourth Circuit Decision
In upholding District Court’s decision, the two Circuit Court Judges in the majority relied upon the documented instances in which the CEO and Rand had expressed unhappiness with Fry’s job performance, both before and after her taking FMLA leave. Ultimately, the majority opinion held that the perception of the employer was the relevant issue, not Fry’s self-assessment, and concluded that Fry had not presented enough evidence to show that the documented reasons for the firing were mere pretext.
By contrast, Judge Motz in his dissent restated the evidence and reasoned that the CEO’s comments questioning the legitimacy of Fry’s FMLA leave combined with the timing of Fry’s termination, could have led a reasonable jury to find an FMLA violation. Judge Motz, therefore, would have allowed the jury verdict in favor of Fry to stand.
While the legal determination in the Fry case is solidly rooted in its facts, a key takeaway consideration from the saga for both employers and employees, alike, is the need for documentation. The District Court and Fourth Circuit relied upon the ongoing contemporaneous documentation of Fry’s perceived problems both before and after the FMLA issues arose. This documentation included both emails and other more formal records of work performance problems. Likewise, Rand’s prompt response in granting the FMLA leave was an important consideration for both courts in deciding that the FMLA had not been violated.
Given this evidence and a fully and properly documented personnel file, the employer was able to convince both the District Court and the Fourth Circuit that the jury verdict in favor of the employee should not be the end of the case, and in actuality, the employer had not violated the employee’s FMLA rights when it terminated her employment.