The Problem with Hortatory Deadlines

This week, the Fifth Circuit Court of Appeals ruled in favor of a former employee who claimed that she was terminated in retaliation for leave taken under the Family and Medical Leave Act (“FMLA”).  Lindsey v. Bio-Medical Applications of Louisiana, L.L.C. (Case No. 20-30289), August 16, 2021.  The Lindsey case provides a pretty good case study on how the termination of an employee can result in a lawsuit that will not just go away.

Ms. Lindsey had worked for BMA for 17 years when her employment was terminated for poor attendance and missed deadlines – both good reasons, if they can be proven.  And that was a problem.

BMA had approved FMLA leave for Ms. Lindsey for approximately 6 weeks due to a house fire and her son’s hospitalization.  Approximately two weeks after she returned to work, she found out that a co-worker had proposed distributing medication that came in for deceased patients to other patients.  She sent an e-mail to her supervisor that the proposal was both illegal and unethical.  Later that day, her supervisor issued a “Corrective Action Form” claiming that he had received reports from other employees that Ms. Lindsey was not at work when she was supposed to have been prior to her taking FMLA leave.  He issued a disciplinary form to her the next week regarding her attendance without listing specific dates of purported absences.  Later, when deposed, he could not recall the dates she had missed.

Four months later, Ms. Lindsey’s supervisor issued a “Final Written Warning” about her attendance, citing an incident four months earlier when Ms. Lindsey had come in late, a more recent incident when Ms. Lindsey was out sick and had failed to inform her supervisor, and another recent incident where other BMA employees had been unable to locate Ms. Lindsey. 

Several months later, Ms. Lindsey was terminated for missing deadlines and because management was unable to reach her on a certain date – a date which Ms. Lindsey testified she was away at a training meeting.  As for the deadlines she had missed, the Fifth Circuit stated:

“As anyone who has ever worked in an office environment can attest, there are real deadlines and hortatory ones – and everyone understands the difference between the two.  Missing real deadlines result in actual adverse consequences for employer and employee alike – while failing to meet hortatory deadlines does not.” 

Ms. Lindsey had routinely missed certain monthly deadlines, and they routinely had not mattered.  The bottom line – the Fifth Circuit Court of Appeals felt that Ms. Lindsey had presented sufficient evidence that the reasons proffered for her termination were pretextual and that she could proceed to trial on her claim that the real reason she was terminated was due to her FMLA leave.  Her FMLA discrimination claims could proceed to trial.

My Take: I doubt that Ms. Lindsey’s supervisor actually had a problem due to her FMLA leave – that is rare.  Instead, I suspect his problem stemmed from her e-mail opposing a proposed prescription practice that she viewed as illegal. The company did not follow the proposal, so no illegal activity actually occurred – but her stance may still have been an irritant to her supervisor, coloring his subsequent behavior towards her.  And that behavior, however motivated, exposed the company to a discrimination claim – terminating an employee for attendance issues for unknown dates and without verifying work was in fact being missed on those dates, and terminating an employee for missing non-critical deadlines.

The FMLA applies to employer locations where an employer has 50 employees in a 75-mile radius.  But most other bases for an employment discrimination lawsuit in Texas are triggered when an employer reaches 15 employees over a 20-week period.  When your business begins to hit the 15 employee mark (including independent contractors), it is time to begin considering adding Employment Practices Liability Insurance to your overall liability coverage.  The reason is simple –even though the vast majority of discrimination lawsuits I have seen lack merit and settle for nuisance value, defending discrimination lawsuits is not cheap.  In most instances, the value of the insurance premium is found in the payment of defense costs far more than the settlement amount.

May you find joy in what you do and who you are with.