Recent Case Illustrates FMLA Risks for Employers

Goelzer v. Shebogan County, Wis., 604 F.3d 987 (7^th Cir. 2010)

A recent case illustrates the danger of terminating an employee who is about to take leave under the Family and Medical Leave Act (FMLA).  The case also shows why supervisors must be careful not to make statements which might be construed as critical of an employee’s attendance when the absences are FMLA protected.

The plaintiff, Dorothy Goelzer, worked for Sheboygan County, Wisconsin.  In 1999, she became Administrative Assistant for the new Administrative Coordinator, Adam Payne. In 2002, Goezler took FMLA leave for eye surgery.  In her 2002 performance review, Payne noted she was absent more that year than in the past.  In 2003, Goelzer took FMLA leave for another eye surgery.  Payne denied her a merit pay increase that year.  In so doing, he indicated she was out 113 days the past two years. 

In 2004, Goelzer was out about weeks on FMLA leave.  In 2005, she was granted intermittent FMLA leave to care for her mother.  Both years she received a merit pay increase. In 2006, the County again granted her FMLA leave, this time for foot surgery.  Payne was then promoted and promptly terminated her, explaining in his new role he needed an assistant with a stronger set of skills.  This was two weeks before her FMLA leave was to begin.  She was though still paid for the leave period.   

Goelzer filed a lawsuit alleging she was terminated her in retaliation for invoking her right to take FMLA leave and this interfered with her right to return to her job after the FMLA leave ended.  The district court dismissed the case on summary judgment, but the Seventh Circuit Court of Appeals reversed, explaining, under the facts presented, it was up to a jury to decide whether there was a causal connection between Goelzer's requests for and use of FMLA leave and her termination.