The 10th Circuit Court of Appeals, in Brown v. ScriptPro, recently clarified that discharging an employee within two days of a request for medical leave does not by itself establish a violation of the Family and Medical Leave Act if there is uncontroverted evidence that the employee would have been discharged in the absence of the leave request. 

Frank Brown, a customer service operations analyst employed by ScriptPro was dismissed two days after requesting medical leave. During his employment, Brown received mixed performance reviews. His performance review for 2007-2008 contained satisfactory or high rankings in the areas of “Quality of Work” and “Attendance,” but a marginal performance ranking for “Planning and Organization of Work” and “Work Relationships.”

Brown's written evaluations were also critical of his excessive internet usage, his lack of respect for personal boundaries in the workplace and his belligerence towards customers. Following his evaluation, Brown continued to have problems with his behavior and trouble completing projects on time.  

Although he was granted two weeks of paid leave following the birth of his child earlier in the year, ScriptPro denied Brown's request for leave to accompany his wife to the doctor on Nov. 19, 2008. Two days later, on Nov. 21, 2008, ScriptPro terminated Brown's employment, citing “unresolved, previously discussed performance issues.” 

Brown filed suit against ScriptPro alleging, among other things, interference with the exercise of his rights under the FMLA, and wrongful termination in retaliation for exercising those rights. The district court granted summary judgment in favor of ScriptPro, and Brown appealed. 

The 10th Circuit first reviewed Brown's FMLA claim under an interference theory. To succeed on an interference claim, an employee must show: (1) he or she was entitled to FMLA leave; (2) an adverse action by the employer interfered with the employee's right to take FMLA leave; and (3) the adverse action was related to the exercise, or attempted exercise, of the employee's FMLA rights.

The 10th Circuit found that Brown established the first two factors, but failed to establish a causal link between his exercise of FMLA rights and his termination. The 10th Circuit ruled that since intent is irrelevant under an interference theory, the timing of Brown's dismissal in relation to his leave request could, in some circumstances, be enough to prove the third element. ScriptPro, however, demonstrated that it would have terminated Brown's employment regardless of his request because of his documented performance issues.

The 10th Circuit reasoned that ScriptPro's overwhelming and uncontroverted evidence that Brown's employment was terminated for identified performance issues was sufficient to support summary judgment in favor of ScriptPro even though Brown was discharged just two days after requesting leave. 

Applying similar reasoning, the 10th Circuit found that Brown's FMLA claim also failed under a retaliation theory. The 10th Circuit ruled that temporal proximity alone was insufficient to establish that ScriptPro's proffered reason for dismissal was pretextual.

As the court explained, in order to show pretext based on temporal proximity an employee must also present at least circumstantial evidence of a retaliatory motive. In light of ScriptPro's overwhelming reasons for dismissal, the 10th Circuit reasoned that temporal proximity was insufficient and Brown could not create a triable issue of fact. 

Documentation that an employee would have been discharged regardless of a leave request can help defeat a retaliation or interference claim, even when protected activity and a subsequent termination are separated by as few as little as two days. Accordingly, it is critical to properly document the basis for dismissal.

Darren Nadel is a shareholder and Katherine Hinde is an associate in Little Mendelson’s Denver office. They can be reached at and, respectively.

This alert is intended for general information and should not be taken as specific legal advice.

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