The 7th Circuit has held that a last-minute “change of heart” regarding a RIF decision – which took place just days after the employee in question notified management of a forthcoming FMLA leave request – created a jury question as to whether or not the “change of heart” was prompted by the FMLA leave request. The case is Shaffer v. American Medical Assocation, 7th Cir. No. 10-2117.
The AMA was planning a round of layoffs, and the decision-maker initially determined that Mr. Shaffer’s position would be a bad idea. This was on October 28. Then, on the Friday before the Thanksgiving holiday weekend, Mr. Shaffer informed his superiors that he would need to miss time in January of the following year due to knee surgery.
You can guess what happens next. On the Sunday following Thanksgiving, the decision-maker had what he described as an “11th hour change of heart,” and decided that Mr. Shaffer should be laid off after all, but since “[t]he team is already preparing for [his] short-term leave in January, … his departure should not have any immediate negative impact.”
Bad idea:
When Lynch emailed Parenti on November 30 that he had now decided to eliminate Shaffer’s position and keep Friedman’s, he included the comment that “[t]he team is already preparing for Bill [Shaffer]’s short-term leave in January, so his departure should not have any immediate negative impact.” A jury could find that this statement, the change in the decision of whom to terminate, and the timing of the new decision soon after Shaffer’s leave request support that his request for leave led to his termination.
The employer did not help its case by allowing the decision-maker to shred his original handwritten notes of the decision-making process–not only that, but allowing him to do so after the employer had already received notice of the threatened litigation.
