A $413,000 Reason For HR to Avoid Inconsistent Discipline

By Eric B. Meyer

Inconsistent discipline is bad. But, when an employee’s request for leave under the Family and Medical Leave Act precedes the inconsistent discipline by only 48 hours, damn, that’s not just a lawsuit, that’s jury-verdict material.

Kathleen Marez, the plaintiff in this case (Marez vs. Saint-Gobain Containers, Inc.) worked as a production supervisor for Saint-Gobain Containers On January 28, 2008, Ms. Marez notified her supervisor that she would require FMLA leave at some point in the future for her husband’s upcoming surgery.

Ms. Marez was not scheduled to work on January 29 or 30. However, on January 30, the HR Manager called Ms. Marez into work, at which time Marez was fired for what the company claimed were three alleged production infractions from January 28.

Is termination consistent with past practice?

At trial, however, Ms. Marez presented evidence showing that, although other production supervisors had committed the same alleged infractions, they were not terminated. Add that to the timing of her termination — two days after she requested FMLA leave — and the jury concluded that the company had fired Ms. Marez, not for the alleged infractions, but rather for requesting FMLA leave. That’s FMLA retaliation and the jury awarded Ms. Marez $206,500 in damages and an additional $206,500 in liquidated damages. The appellate court allowed this result to stand.

[This outcome here is quite similar to one in a case I addressed in this post last month, where an employer fired an employee two days before her FMLA was to commence].

The lesson for employers is that if you want to fire a poor performer:

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  1. Do it quickly (just not right after an FMLA request); and,
  2. Make sure that the termination is consistent with past practice for similar conduct from other employees.

Given the timing of Ms. Marez’s infractions and the company’s prior record of not terminating other employees for similar incidents, St. Gobain should have documented Ms. Marez’s infractions, afforded Ms. Marez the FMLA leave, disciplined her consistently with the other employees, and allowed subsequent infractions to dictate more aggressive future discipline, such as termination.

$413,000 (plus attorney’s fees) lesson learned.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.


You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.


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