FMLA interference claim is dismissed

In this Family and Medical Leave Act case, the plaintiff argues that her employer fired her after she took 8.5 days of paid time off to care for her sick daughter and mother. She claims management interfered with her FMLA leave and then fired her in retaliation for taking that leave. The Court of Appeals rejects the case and finds that defendant is entitled to summary judgment.

The case is Haran v. Orange Business Services, issued on November 25. After plaintiff was able to take FMLA leave, she began to receive more scrutiny over her work as she managed the Pfizer account, which contracted with Orange Business Services, one of its largest accounts. Plaintiff felt increased pressure due to her supervisor's comments about her progress on maintaining the Pfizer account and, as a result, she took less time off to care for her daughter to focus on this increased work demand. Later on, plaintiff received a lukewarm performance review with an overall rating of "improvement needed." Management said she had a "lack of focus," which plaintiff interpreted to refer to her absences due to her daughter's illnesses. In response to this claim, plaintiff's supervisor said he meant that plaintiff should have been more focused on building relationships with Pfizer to overcome OBS's impasse in maintaining that account. Plaintiff was ultimately terminated for failing to meet her yearly quota for 2020, though management later said she was really fired because she was not expected to meet her 2021 quota. 

The Second Circuit (Raggi, Lynch and Park) says there is no FMLA claim here. While FMLA bars employers from interfering with FMLA leave, which would include discouraging employees from taking such leave, the Court holds that a discouragement claim does not lie where management merely subjects the employee to more scrutiny and criticism of her job performance after she requested leave. Plaintiff did receive FMLA leave, the Court notes. While plaintiff's supervisor warned that she would be removed from the Pfizer account if she could not perform certain work on that account, her supervisor did not mention her time off or her daughter's illness in connection with these warnings. 

The Court advances this legal principle: "Criticizing, even berating an employee's substantive job performance is not enough to assert a claim for interference under as discouragement theory. That is true even if the employee subjectively feels pressure due to the criticism and decides to take less leave than she otherwise would have." The Second Circuit draws this language from a district court case, and it is now the law in the Court of Appeals, which notes that it has previously stated that the "FMLA is not a shield to protect employees from legitimate disciplinary action by their employers if their performance is lacking in some manner unrelated to their FMLA leave." As management's criticism and scrutiny of plaintiff were specific to her job performance and her management of the Pfizer account, not her requests for leave, her "subjective feeling of pressure not to take more time off due to her concerns about her performance is not sufficient for and FMLA interference claim."

The retaliation claim also fails. That claim stems from the same theory as plaintiff's interference claim: that management's comments suggested that he disapproved of plaintiff's FMLA leave, based on the supervisor's comments about her "lack of focus" in conjunction with the negative performance review. But as the Court of Appeals has already held in this case, her manager's comments did not relate directly to her leave, and her mere disagreement with management's assessment of her work performance is not enough to show these criticisms were pretext for retaliation. And, while plaintiff's leave was only a few months before she was fired, "temporal proximity alone is insufficient to defeat summary judgment at the pretext stage."