A recent decision from a federal court in Connecticut serves as a reminder of something you will likely hear whenever you consult a lawyer about the possibility of terminating an employee. Has the employee recently engaged in conduct or exercised a right that could provide grounds for a claim of unlawful retaliation if he or she is disciplined?

The case involved an employee who was fired one day after she started FMLA leave for Lyme disease. Her employer, a public utility, argued that although she was a 15-year employee, her performance and attitude had been poor for some time. However, the court noted that she had not been placed on a performance improvement plan. Also, there was some evidence that her supervisor thought that her disease might adversely impact her performance and availability for work.

The case is not over, and the court simply refused to grant summary judgment to the employer. The opinion indicates that the employee had articulated a prima facie case of discrimination, and that the employer had identified legitimate, non-discriminatory reasons for its action, but that it was up to a jury to decide whether the employer’s stated reasons were pretext for retaliation.

Convincing a jury that the plaintiff’s FMLA leave had nothing to do with the termination decision may not be easy. The average juror is probably more sympathetic to employees than employers, and the timing will be tough to explain away, to say the least. This is especially true if there was no recent incident of significant misconduct or unacceptable performance that the employer can credibly argue was “the straw that broke the camel’s back.”