Tenth Circuit Upholds Termination During FMLA Leave

The 10th Circuit Court of Appeals upheld the University’s termination of its program manager for emergency preparedness in Sabourin v. University of Utah, decided April 6, 2012. The employee was in the process of responding to an audit regarding the University’s handling of grant procedures when he requested FMLA leave.  Shortly before commencing leave, however, the employer had decided to eliminate the employee’s position through a reduction in force.  This was unknown to the employee at the time he requested and was granted FMLA leave.

Once leave commenced, there was extensive evidence that the employee made efforts to impede and obstruct efforts by the employer to get the audit response completed while he was on FMLA leave.  The employee’s behavior included removing tangible files from his office, removing electronic files from the University server, and keeping the laptop where the employee maintained electronic files.  After a request for the documents by the employer, the employee became more insubordinate by not providing them for a period of time. After agreeing to provide the files, he changed his mind when informed of the impending reduction in force.  Finally, the employee provided the document, but it was on a laptop that could not open the file, due to the employee erasing the program needed to open the file.  The employer then changed the reduction in force to a termination.

The court determined that email evidence by the employee’s supervisor clearly showed that the reduction in force was started prior to the request for FMLA leave.  As a result, the reduction in force decision was not the result of taking FMLA leave.  The Court further determined that the reduction in force could be converted to a termination because of the employee’s obstructive, insubordinate, disloyal, and vindictive behavior during his leave.  He was terminated for behavior while on leave, not because he requested leave.​