FMLA: Court didn’t like termination timing

While working for the company, Jessica received positive feedback and good reviews. She was never told about any performance issues, nor was she ever placed on a performance improvement plan.

In December 2019, Jessica told her colleagues that she was pregnant, due in June.

In early 2020, Jessica's department went through a reorganization, and in May she was fired. Her supervisor, Idalia, was the only decision-maker regarding the termination. Jessica sued, claiming that the employer retaliated against her because she needed leave under the federal Family and Medical Leave Act (FMLA) due to her pregnancy.

The issues that were part of the lawsuit:

• Jessica was the only person in her department who was fired.
• The employer told Jessica she was fired because of the reorganization, not her performance.
• The employer told Jessica that her position was being eliminated due to cost control.
• The employer filled Jessica's job, paying the replacement employee 20 percent more, and it gave other employees bonuses and pay increases.

Things didn't get any easier for the employer in court:

• Only after landing in court, did Idalia say that Jessica was performing poorly. Idalia never gave Jessica written performance feedback.
• When asked if the fact that Jessica was pregnant and anticipating maternity leave entered her mind when determining whom to let go, Idalia said "It might have."

The employer tried to argue that Jessica couldn't win her case because too much time passed between her telling them about her pregnancy and her termination.

The court didn't buy the employer's argument. The length of time between the termination and her scheduled leave was close enough that the court considered it "unusually suggestive," as she was fired only two weeks before her upcoming leave.

Brennan v. Five Below, Inc., Eastern District of Pennsylvania, No. 22-1383, March 13, 2025.