Sierra High School employed Patti Hartman as its assistant principal. Dr. Griffen was the principal and Hartman’s direct supervisor. On November 4, 2014, Hartman suffered some injuries requiring her to miss work intermittently in November of 2014 and January 2015.

On January 14, 2015, Dr. Griffen met with her to discuss his intent to place her on a “Growth Improvement Plan.” She was ultimately placed on that Plan on February 9, 2015. It was during the February 9, 2015, meeting that Hartman said she would “formally” apply for leave under the Family and Medical Leave Act, which she did. She applied for and was granted FMLA leave from February 11 through April 9, 2015. However, because she ran out of paid leave, she returned to work early, on March 20, 2015.

On May 1, 2015, the school notified Hartman that it would not be renewing her contract for the upcoming school year. Hartman sued for FMLA retaliation. The school moved for summary judgment in its favor, trying to avoid a trial.

The court’s decision initially focused on whether Hartman could prove a “causal connection” between her “protected activity” of taking FMLA and the school’s decision not to renew her contract. Proximity is always a consideration. In this case, the time period was close – likely not more than six weeks. The court found that such a time span supported a “causal connection.” With that, the school was required to, and did, present evidence of a legitimate reason for its decision – Hartman’s failure to perform her duties.

Thus, as is always the case in questions of retaliation, the court is left to determine if the employee has evidence of “pretext” such that the case should be presented to a jury for resolution. It is important to understand that, at this juncture, the court views the evidence in a light most favorable to the employee because the court is only determining whether the case presents genuine issues of facts for a jury to decide.

The school maintained it gave Hartman the Growth Improvement Plan and that, when Hartman failed to meet the criteria therein, it gave her the notice of non-renewal of her contract.

However, Hartman presented a different picture – an employer who gave her a Growth Improvement Plan designed for her failure. She presented evidence that school personnel in early April had already determined she was going to fail, well before the end of the Plan. She also presented evidence that some of the projects in the Plan required time that could not have been expended due to her FMLA leave time, again ensuring her failure. In sum, Hartman presented evidence from which a jury could conclude that the Growth Improvement Plan was but a pretext for retaliation.

After reviewing the evidence, the court ordered this case to a jury for a resolution as to whether Hartman was legitimately terminated for not meeting expectations or whether the school was in fact retaliating against her for her use of FMLA and, perhaps, using the Growth Improvement Plan as the vehicle to make it look legitimate.

There is a lesson to be learned. Most employers will use some type of written documentation to communicate expectations to an employee when discharge may be near. You may call it a Growth Improvement Plan, a Performance Improvement Plan, or a Final Warning Letter. The title is unimportant. What is important is to ensure that the communication of work expectations is clear and achievable. At the trial of Hartmann’s case, the school will be charged with defending each and every expectation it wrote in that Growth Improvement Plan. Was it reasonable? Was it achievable? Should it have been altered (in scope or timeline) once Hartmann took FMLA leave? As you may be now or in the future in a similar situation, these are questions you should ask. Are the expectations clearly communicated and are they achievable? If not, you might want to reconsider them.

By Kristen L. Brightmire, kbrightmire@dsda.com