On March 9, 2022, the 7th Circuit affirmed an order of summary judgment in favor of the defendant employer in a lawsuit filed by a former employee, who alleged that the employer violated the Family and Medical Leave Act (“FMLA”) by terminating her employment four days after she returned to work from an FMLA leave of absence. Anderson v. Nations Lending Corporation, No. 21-1885 (7th Cir. March 9, 2022). She filed a federal lawsuit for violations of the Americans with Disabilities Act as well as for interference and retaliation under the FMLA. In an FMLA interference lawsuit, the employee has the burden to demonstrate that the interference occurred. To prevail on an FMLA interference claim, a plaintiff must establish that: (1) she was eligible for the FMLA; (2) her employer was covered by the FMLA; (3) she was entitled to leave under the FMLA; (4) she provided notice of her intent to take leave; and (5) her employer denied her FMLA benefits to which she was entitled. At issue in this case was the fifth element.

Under the FMLA, an employee on leave is entitled to restoration to the same or an equivalent position that she had before she took FMLA leave. However, an employee is not entitled to return to her former position if she would have been terminated regardless of whether she had taken the leave. An employee may be terminated for poor performance during or after her FMLA leave. The defendant terminated the plaintiff when it concluded its ongoing investigation of her performance issues after she returned. She failed to provide evidence that her work performance deficiencies did not take place or that the defendant’s investigation into the deficiencies was not a bona fide attempt to assess the appropriate employment action in accordance with its employment policies.

The plaintiff also alleged that she was terminated in retaliation for exercising her FMLA right to take her leave. The FMLA provides that it is unlawful for an employer to terminate an employee for opposing any employment practice that the FMLA makes unlawful. To prevail on an FMLA retaliation claim, a plaintiff must establish that: (1) she engaged in statutorily protected activity; (2) the employer took adverse employment action against her; and (3) the protected activity caused the adverse job action. Notably, the employee is not required to prove that retaliation was the only reason for her termination. The “but-for” standard of causation does not apply to FMLA retaliation claims. It is sufficient for a plaintiff to establish that the protected activity was a substantial or motivating factor in the employer’s termination decision. In this case, the FMLA leave was protected activity and the termination an adverse job action. However, the plaintiff failed to establish a causal connection between the two. The defendant presented undisputed evidence that the adverse employment action was based on job performance and not any retaliatory animus.