?Takeaway: This case serves as a reminder to employers about the importance of the kind and quality of the evidence supporting the employer’s stated, legitimate, nondiscriminatory reasons for termination. If the defendant had not documented its performance concerns and FMLA-related interactions with the plaintiff as thoroughly as it did, the outcome might have been different.
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An 8th U.S. Circuit Court of Appeals decision is a reminder to employers of the value in properly documenting concerns about employee performance and separating those concerns from protected activities, like the use of Family and Medical Leave Act (FMLA) time off.
The plaintiff was a high-ranking administrator at Drake Universityin Des Moines, Iowa. She had been employed by Drake for nearly 30 years and oversaw Drake’s departmental budgets, faculty appointments and payroll. The plaintiff also had multiple sclerosis and chronic neck and back pain. The plaintiff’s direct supervisor was the dean of Drake University. From the moment the dean joined Drake in July 2018, the plaintiff and she did not get along. The plaintiff’s employment was terminated in October 2019 after various performance concerns.
The district court granted Drake’s motion for summary judgment, and the 8th Circuit affirmed.
The plaintiff alleged that Drake fired her because she had multiple sclerosis, because she had an erratic work schedule due to medical appointments, and because she took FMLA leave. Drake, in response, pointed to a robust, well-documented set of legitimate reasons for the plaintiff’s termination, many of which were so well-documented the plaintiff did not dispute them at the trial level or on appeal. Those reasons, according to Drake, included non-FMLA tardiness and attendance issues, payroll administration problems (not paying staff members the right amounts), other mistakes in the plaintiff’s work, poor communication, missed deadlines and improper use of vacation time.
The appeals court briefly acknowledged the McDonnell Douglas burden-shifting framework and then, with a nod to the more modern trend, skipped right to the plaintiff’s evidence that Drake’s stated reasons for terminating her employment were pretext for intentional discrimination—the third issue under McDonnell Douglas.
The plaintiff advanced two theories on appeal, both of which she claimed were evidence of pretext. First, she pointed to evidence of an alleged causal nexus between the plaintiff’s FMLA request or leave and Drake’s termination decision. The 8th Circuit gave this argument short shrift, describing the connection as “tenuous” and then leaning on established case law holding that the mere fact that one event happened before another, standing alone, is not enough to constitute sufficient evidence of causation under McDonnell Douglas.
Second, the plaintiff argued that Drake’s failure to strictly follow its harassment complaint policies was evidence of pretext, but the appeals court minimized the omission at issue as “slight” and as constituting mere “technical noncompliance.” At the end of the day, the appeals court affirmed the district court’s summary judgment ruling.
The 8th Circuit referenced each of the following:
1. Drake had a “robust, well-documented set of legitimate reasons” for terminating the plaintiff’s employment.
2. Drake had appropriately documented its concerns about the plaintiff’s job performance.
3. Drake’s explanation for the reasons to terminate the plaintiff’s employment “never wavered.”
4. Drake had clearly delineated its coaching on its concerns about the plaintiff’s job performance from FMLA-related issues.
5. The plaintiff did not or could not dispute many of Drake’s stated reasons for terminating her employment given the evidence Drake was able to produce.
Corkrean v. Drake University, 8th Cir., No. 22-1554 (Dec. 13, 2022).
Brandon Rainey is an attorney in the Palo Alto, Calif., office of Duane Morris LLP.
