Firing was not Retaliation for FMLA Request

April 18, 2006 ( - The 5th US Circuit Court of Appeals has ruled that the firing of an employee experiencing side effects of a diabetes medication was justified and was not in retaliation for his request for leave under the Family and Medical Leave Act (FMLA).

In its decision, the appellate court found that not only did plaintiff Kenneth Mauder not prove that his dismissal was related to his request for FMLA leave, but that his condition was not a “serious medical condition” under FMLA requirements and he failed to provide requested medical information to his employer.

Mauder was employed by the Metropolitan Transit Authority of Harris County, Texas as a Senior Support Center Analyst, requiring him to answer telephone calls from internal customers.   Prior to Mauder’s diagnosis of Type II Diabetes, a new supervisor had noted that he was often away from his desk and unavailable to take calls.   She sent him an email to this effect.

After being diagnosed with his condition, Mauder was placed on a medication that caused temporary uncontrollable bowel movements as a side effect.   He was repeatedly reprimanded for being away from his desk at unscheduled times and being tardy from scheduled breaks.   He only notified his supervisor of his condition after the second reprimand.   The supervisor requested more information about his medical condition and Mauder refused, saying he and his doctor had provided enough.

In September of 2002 Mauder was placed on a one-month corrective action plan.   If his performance and attitude did not improve in the one-month period, he would be dismissed.   During the third week of the probationary period he requested FMLA leave.   The company provided him with a packet and told him it was due back on October 19, however, Mauder was dismissed on October 11.

Mauder sued the company, claiming that he was fired in retaliation for requesting FMLA leave.   The district court granted summary judgment in favor of the Transit Authority, and Mauder appealed.  

In affirming the lower court decision, the appellate court said that the company was not required to suspend Mauder’s termination pending his FMLA request and that his termination should not have taken him by surprise.

The opinion is here .