FMLA Retaliation Victim Wins Appeal In Sixth Circuit
Kmart Employee Fired For Taking Medical Leave Wins Family and Medical Leave Act Appeal
You would think most employers know that you’re not supposed to fire someone because they take a medical leave of absence – but it looks like K-Mart may have missed the boat.
A sales clerk at one of its Michigan stores who lost her job for taking time off after surgery will get her jury trial on a Family and Medical Leave Act retaliation claim according to the Sixth Circuit Court of Appeals opinion last week in Cutcher v Kmart Corporation.
Here’s what happened in the case.
The Facts
Susan Cutcher worked as a full-time hourly sales clerk at Kmart for many years. (Kmart calls these employees “associates”) Her performance evaluations were good to excellent. 
In 2002, she received an overall rating of “exceptional,” the second highest rating available that year. In 2003, she again received a rating of “exceptional,” the highest possible rating in that year’s appraisal.
In 2004, her rating dropped from “exceptional” to “exceeds expectations,” the second highest rating possible. In 2005, she again received an overall rating of “exceeds expectations.”
The 2005 review noted: “Susan usually is able to provide good, friendly, customer service, her work is usually very well done—and accurate.”
In early November 2005, Cutcher learned that she needed surgery. Her doctor indicated that she required six weeks off work after surgery and signed the necessary forms which Cutcher then submitted.
In December of 2005, while Cutcher was on leave, Kmart announced a nationwide reduction in force (“RIF”). The Port Huron Michigan store, like others, was required to cut a number of associate positions.
Each store received guidelines as to how it would go about making the cuts. The guidelines included an "Associate Performance Recap Form” which included :
- the same four performance categories as the annual evaluations: customer service, teamwork, demonstrated work habits, and effectiveness in position
- consideration of the employee’s most recent annual appraisal rating in calculating an employee’s score
- a requirement that the stores provide an explanation in the comments section -- along with documentation -- of a significant change in the employee’s score when compared to their annual appraisals
- a statement that those on a LOA (leave of absence) should be included in the selection process but that the fact of a LOA should not be considered as a rating factor
When Cutcher was evaluated for the RIF, she received lower ratings than she received in the last performance appraisal for the same categories. In addition, the following comment appeared next to her name: “Poor customer and associate relations. LOA.”
The last evaluation was just twenty days earlier, and no performance issue occurred in the interim, nor was there any documentation to substantiate a lower rating. The only employment event regarding Cutcher was her leave of absence.
The negative evaluation and low scores caused Cutcher to be selected for termination. Had she been evaluated consistently with her last evaluation of November 15, 2005 --just twenty days earlier -- her ranking would have been high enough to avoid the RIF.
When Cutcher returned from medical leave to active status on January 23, 2006, she was greeted with a pink slip. Her position was not eliminated. It was given to another employee.
Cutcher filed a lawsuit in federal court against Kmart claiming that Kmart violated the FMLA by interfering with her FMLA leave and retaliating against her for taking FMLA leave.
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