Employer fired employee for absences, not FMLA

Matt's work schedule was generally Sunday through Thursday, from 5:30 a.m. to 3:30 p.m., but could change due to work demands. Matt sometimes came in early and worked late. Despite this, Matt began coming in late too often, and his tardiness was captured on surveillance video.

Sam, Matt's supervisor, contacted HR in September to request corrective action, including possibly firing Matt because of attendance and performance problems. The problems, however, persisted.

The following spring, Sam was prepared to fire Matt, but talked with HR and agreed to give Matt a final warning. Regardless, Matt was late again on June 12 and 13.

On June 13, Sam sent an email to HR seeking to fire Matt. On June 14, HR prepared a termination letter, dated June 16, because that was the date on which they were planning to notify Matt of the decision to terminate his employment.

Leave request

On the night of June 14, Matt emailed Sam claiming to need medical leave. The company approved his request as time off under the Family and Medical Leave Act (FMLA). It also decided to postpone Matt's termination until after his FMLA leave ended.

After the leave, Matt contacted Sam about returning to work, and Sam referred Matt to HR. HR sent Matt a termination letter with the same information from spring — before his leave request — but with a later date.

Matt sued, claiming that he was fired because he took FMLA leave. The employer argued that Matt was fired for his absences before his FMLA leave request, not because he took the leave.

Courts look at the time between FMLA leave and firing. The mere coincidence of timing, however, is rarely enough to establish that the leave caused the termination. In this case, it was not enough. In finding for the employer, the court felt that Matt asked for leave in June, but was fired in August.

What the employer did right

The employer took several steps that helped it win the case. It:

• Tracked all the dates Matt was late and by how much. It also had a photo of Matt sleeping on the job.
• Gave Matt chances to improve, referring to the company policy.
• Gave Matt a clear final warning that more absences would result in termination.
• It quickly processed and granted Matt's FMLA leave request.
• Had a legitimate, well-documented reason for firing Matt.
• Followed its policies in terminating Matt.

Feimster v. Westinghouse Air Brake Technologies Corporation, Eastern District of Arkansas, No. 4:23-cv-00446, February 19, 2025.