Employee who suffered from intermittent depressive episodes which made it difficult for her to sleep, deal with people, and cope with work situations was fired from her job as a computer support specialist with county employer. During her 7 year employment period, employee received several negative performance evaluations concerning her interactions with others. She was criticized for rude and inappropriate behavior and for not being able to keep her cool. Employee had received and taken FMLA leaves on several instances during her employment. County employer terminated employee’s employment for inappropriate behavior and making personal charges on employer credit card, and employee sued claiming employer retaliated under FMLA.

To make a prima facie case of reprisal under the FMLA, an employee must show: (1) protected employee action; (2) adverse action by an employer either after or contemporaneous with the employee’s protected action; and (3) a causal connection between the employee’s action and the employer’s adverse action. Court held that the County’s stated reason for Plaintiff’s termination-her difficulty in getting along with coworkers-is documented beginning in 1997 (two years prior to Plaintiff’s extended FMLA leaves). So termination was not in retaliation for FMLA leaves.

McWilliams v. Jefferson County, 463 F.3d 1113 (CA 10 2006).

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