Skip to Search
Skip to Main Content
Main Content

Godfrey & Kahn Updates

Timely prformance mnagement in avoiding FMLA liability

May 11, 2013

Managing the performance or conduct of an employee who has recently utilized leave under the Family and Medical Leave Act (FMLA) can be a legal minefield for employers. If the poorly performing employee does not improve his or her performance upon return from FMLA leave, the employer may be hesitant to take further employment action against the employee for fear that the timing of the decision will create a risk of liability under state or federal leave laws. A comparison of two recent court decisions serves as an important reminder that contemporaneously addressing and documenting performance or conduct issues as they occur can go a long way in protecting the employer from liability in a later FMLA retaliation claim. 

In Benimovich v. Fieldston Operating, LLC, Case No. 11-CV-780 (S..N.Y 3-22-2013), the plaintiff, Galina Benimovich, took FMLA leave to undergo and recover from knee replacement surgery.  While on leave, the employer hired and trained a replacement. When Benimovich learned that she had been replaced, she contacted the employer and offered to return from leave. When the parties met a few days later to discuss the situation, the employer terminated Benimovich’s employment. 

Benimovich subsequently filed a lawsuit against the employer alleging a variety of claims, including a claim that the employer had unlawfully terminated her in retaliation for exercising her FMLA rights. The employer defended that its owners had actually decided to terminate Benimovich months before she took FMLA leave, but that they wanted to hire and train a replacement before firing her. The employer claimed its motivation to terminate Benimovich was poor performance, specifically inaccurate processing of payroll records, manipulation of time records, failure to issue accurate paychecks, and untimely payments to vendors.

The court denied the employer’s motion for summary judgment on the FMLA retaliation claim. In allowing the case to go forward, the court noted that the temporal proximity between the leave and the termination was suspect. However, the court also relied heavily on the fact that there was no written documentation substantiating Benimovich’s alleged performance problems or the owners’ decision to terminate Benimovich months earlier. The court further noted that Benimovich’s performance was rarely, if ever, criticized.

Contrast the outcome in Benimovich with the analysis and decision of the Court of Appeals for the Eight Circuit in Brown v. City of Jacksonville, Case No. 12-1730 (8th Cir. 2013). The plaintiff in Brown took FMLA leave from August 9, 2008 through October 18, 2008 to undergo hip replacement surgery. A few months before going on leave, Brown received a written warning for insubordination. Brown’s supervisors had also verbally counseled her regarding her performance on a number of occasions. 

After returning from leave, Brown received another written warning for failure to perform her duties as purchasing manager. Brown filed a complaint with the Equal Employment Opportunity Commission (EEOC), which led the City to conduct an internal investigation into Brown’s complaints. The investigation revealed that Brown’s co-workers considered her to be a very negative presence in the workplace and felt they had to walk on “pins and needles” due to Brown’s attitude issues. Additionally, the investigation revealed that Brown’s co-workers were able to adequately perform Brown’s purchasing duties during her absence. The City concluded that Brown was creating a hostile work environment for her co-workers and terminated her employment for “failure in performance of duties” and “failure in personal conduct.”

Following her termination, Brown filed a lawsuit against the City alleging FMLA retaliation and a number of other discrimination claims. On appeal, the Eighth Circuit approved of the lower court’s grant of summary judgment to the employer on Brown’s FMLA retaliation claim.  First, the court noted that the timing of Brown’s termination – eight months after returning from leave – did not raise an inference of discrimination. Second, the court held that the undisputed evidence (which included written warnings) showed that Brown was warned about her poor performance prior to even going on leave. Accordingly, the Court affirmed summary judgment in favor of the City.

There are a number of distinguishing factors that explain the differing outcomes in Benimovich and Brown – including the amount of time between the employee’s leave and termination. Importantly, however, employers should also take note of the critical role that written warnings and performance counseling played in the Eight Circuit’s award of summary judgment to the employer. The employer in Brown was able to justify its termination and avoid liability in a tricky situation because it had the written documentation and prior performance counseling to support its claim of poor performance. Conversely, the employer in Benimovich was denied summary judgment because it had failed to document either the purported performance issues or the earlier decision to terminate. 

No doubt, terminating or taking adverse employment action against an employee who has recently utilized legally protected leave rights is risky, and an employer should consult legal counsel before taking any such action. However, these cases illustrate that proper documentation of performance and disciplinary issues is one of the most important preventative steps an employer can take now to reduce the risk of future liability.

Related Attorneys


Get practical insights on COVID-19 legal issues for your business.

Visit Resource Center

Media Contact 

If you have a media request or need an attorney with particular knowledge for comment, please contact Kyle Mondy, Marketing & Communications Manager, at 414.287.9481 or


Subscribe today to receive firm newsletters and blogs, client updates, seminar announcements, and more according to your preferences and areas of interest.


For more information on this topic, or to learn how Godfrey & Kahn can help, contact our COVID-19 Response Team.

Disclaimer and Legal Notices

Copyright © 2021 Godfrey & Kahn, S.C.

Attorneys at Law - All rights reserved.


Client Login