A month after taking FMLA, Dynetta Cole's employer, the State of Illinois, told her she had to agree to an employee improvement plan or she would be fired. She refused and was fired. Cole worked in the governor's office, filing and responding to correspondence. Before she took FMLA, Cole's supervisors had problems with and received complaints about Cole. Cole then took FMLA to recover from a car accident. She returned part-time but the problems remained, leading her supervisors to create an employee improvement plan designed to improve her attendance, attitude and job performance. The attendance portion of the plan focused on having Cole better communicate when she needed to be out of the office and suggested she write out her daily and weekly schedule for her supervisors. The attitude section was based upon multiple complaints from constituents and co-workers and suggested Cole be 'more aware of her tone" and work on being a "better listener." The job performance section noted Cole generally completed her duties but she had let her filings fall behind causing a strain on her co-workers (who apparently had trouble finding documents due to Cole's part-time status). Cole refused to sign the plan asserting she had received good performance evaluations and that any difficulties she had were due to cultural differences. After refusing a second opportunity to sign, Cole was fired. She sued contending retaliation under the FMLA.
The court initially held that Cole failed to show her termination was motivated by her taking FMLA leave as opposed to her twice-refusal to sign the improvement plan. The timing of her firing, two months after her FMLA leave was not enough. Cole also argued forcing her to sign the improvement plan was itself discriminatory, arguing that the plan was a "negative factor" for her using FMLA leave and was thus absolutely prohibited by the FMLA regulations. The court disagreed, holding the improvement plan was not a retaliatory adverse employment action in that it would not cause a reasonable employee to forego exercising rights under the FMLA. (More on that in a minute.) The court reasoned that the plan was not "onerous" the most it did was require Cole to submit daily and weekly schedules (which could be altered with advance notice). That was not enough because "a reasonable employee plans her day" and this task could actually improve work habits and productivity. The other requirements, saying she needed to be a better listener and be aware of her tone, were minor impositions at most.
The court's decision is significant because it applies the Supreme Court's 2006 decision in Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006), to employee improvement plans. Before Burlington several decisions (including a Sixth Circuit decision) had held improvement plans were not adverse action but Burlington changed the legal criteria for what is a retaliatory adverse employment action. This decision construes the pre-Burlington decisions as entirely consistent with Burlington's holding.
One of the key points of the decision was that the plan itself did not put Cole intractably on the path to termination, had she signed it, she may have satisfied her supervisors and been able to keep her job. That distinguished it from situations where the employer had given the employee the choice of resigning or taking a lower paying job.
Employers in Tennessee are stuck with some pretty ridiculous caselaw on temporal proximity so the approach in Cole is a welcome alternative to taking immediate adverse action when an employee's performance lags after the employee returns from FMLA leave (or engages in some other protected activity). It is important, however, not to make the plan too "onerous;" but any plan that simply says to an employee, do your job, let us know when you will be at work, and don't be rude to customers and co-workers is hardly likely to be onerous.
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