Break the chain to defeat a retaliation claim

The U.S. 10th Circuit Court of Appeals (whose rulings apply to employers in Kansas and Oklahoma) recently ruled that United Airlines’ independent review processes defeated an employee’s claim of Family and Medical Leave Act (FMLA) retaliation. Employers should take note and consider whether their internal processes to review discipline and termination might help head off retaliation claims.

Facts

Jeannie Parker worked for United Airlines taking calls and booking flight reservations. She took FMLA leave for a vision disorder and to care for her father who had cancer. United ultimately terminated her employment five months after it had approved her FMLA leave.

While she claimed she was fired in retaliation for taking FMLA leave, United asserted her performance was lacking because she engaged in a pattern of “call avoidance,” meaning placing customer calls on lengthy holds to avoid taking new calls.

Under United’s independent termination review policy, Parker’s supervisor couldn’t directly fire her. Instead, United selected an independent senior manager to meet with Parker, her supervisor, and her union representative. After hearing arguments from both sides related to Parker’s performance and the stated reason for her termination, the independent manager decided to terminate Parker’s employment.

Parker appealed this decision through United’s grievance procedures but declined to personally participate in the appeal hearing, and the termination decision remained in place.

Independent review saves the day