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Court Finds Insubordination, Dismisses FMLA Retaliation Claim

By Robyn Hagan Cain | Last updated on

Timing isn't everything. For example, a plaintiff is not guaranteed to prevail in a Family and Medical Leave Act (FMLA) lawsuit simply because his FMLA leave and his termination date overlap.

Michael Sabourin sued the University of Utah, claiming, among other things, that it had violated the FMLA by deciding to eliminate his position and then firing him for cause while he was on leave for childcare in June 2006. Though the timing of the University's decision may have seemed suspect, the Tenth Circuit Court of Appeals ruled last week that Sabourin's termination was based on insubordination, not FMLA retaliation.

Sabourin became a program manager with the University’s Department of Environmental Health and Safety (EHS) 2004. In April 2006, Sabourin’s supervisor, Marty Shaub, asked the University’s internal audit department to review EHS’s administrative practices. After receiving a draft report indicating potentially “systematic problems,” within the program, Shaub asked Sabourin to generate a response “as quickly and as efficiently as possible.” Weeks passed, and Shaub became concerned that she had not received a draft response and that Sabourin had grown defensive when asked for updates.

On May 31, Shaub sent an email to the University’s human resources department explaining that she intended to “impose a reduction in force” that would eliminate Sabourin’s position because of a depletion in grant money. Independent of the arrangements for a reduction in force, Sabourin requested FMLA leave for childcare needs. The leave was approved. In the following weeks, problems between Shaub and Sabourin regarding the audit report persisted, and Shaub terminated Sabourin’s employment.

The termination letter listed a number of reasons for Sabourin’s termination, including failure to comply with university policies, late work, and non-responsiveness. The letter also asserted that the University could suffer a loss of more than $350,000 from Sabourin’s actions in obstructing the audit.

While Sabourin claimed in his FMLA lawsuit that he was a victim of illegal retaliation, the Tenth Circuit Court of Appeals concluded that there was sufficient evidence of insubordination to support his termination.

When defending an FMLA retaliation claim, an employer simply must assert a nonretaliatory motive, and then provide evidence showing that the asserted motive is pretextual. If defending an FMLA interference claim on the ground that the employer would have terminated the employee anyway, the employer bears burden of persuasion to prove that defense. Here, the Tenth Circuit concluded that the University satisfied its burden under an interference claim as well as under a retaliation claim.

Coincidental timing is not enough to prove FMLA claims. Prepare your clients for the possibility that an employer may assert — and prevail — in an FMLA lawsuit with an independent cause for termination.

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