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The Employer Handbook Blog
FMLA or Not, Performance Still Matters: This Case Shows Why
When criticism stays focused on performance, and not on leave, employers are on stronger footing. This decision shows how that plays out.
TL;DR: A senior account manager took eight and a half days of paid time off to care for a seriously ill daughter and then her mother. She later claimed the company interfered with and retaliated against her Family and Medical Leave Act (FMLA) rights. The Second Circuit affirmed summary judgment for the employer because performance issues were documented before the leave, every leave request was approved, and there was no proof that criticism or the termination decision was tied to her time off.
The setup: new accounts, more pressure, family health crises
The employee had been successful managing non-U.S. accounts. In 2020, she picked up several large U.S. accounts and struggled. Her supervisor documented problems with strategy, communication, and revenue pipeline in a mid-year review, but still rated her “fully successful” based on prior performance.
In October 2020, her daughter needed surgery for a serious condition. Her supervisor told her to take the time she needed. She took a total of seven and a half days of paid time off over the next few months to care for her daughter. In February 2021, she used one more day of paid time off to take her mother, who had macular degeneration, to a doctor’s appointment.
No one mentioned the FMLA. All of the time off was approved as PTO.
Meanwhile, some of her largest U.S. accounts, including a major pharmaceutical company, decided to stop doing business with the company for reasons that were not entirely in her control. But in the year-end review, she received an “improvement needed” rating. The supervisor again focused on pipeline and future revenue. According to the plaintiff, he also mentioned “lack of focus,” which she believed was about her caregiving. He said he meant focus on client relationships and strategy.
On February 24, 2021, the company terminated her. The explanation tied back to concerns that she would not meet 2021 targets.
She sued for FMLA interference and retaliation, plus a New York City Human Rights Law claim. The district court ruled for the employer, and the Second Circuit agreed.
What the court focused on
1. Interference: criticism about performance is not criticism about leave
The plaintiff said she felt discouraged from taking more time off because:
- her supervisor scrutinized her more closely,
- he raised the possibility that a major account would be reassigned, and
- he mentioned “lack of focus.”
The court called that subjective. There was no evidence that anyone tied those comments to her absences or her family’s health. Every leave request was granted, she was told to take the time she needed, and there were no negative remarks about taking time off.
Result: no interference based on discouragement.
2. Interference: notice failure without prejudice does not equal liability
The company did not send the formal FMLA eligibility and rights notices after learning about the daughter’s condition. That was not enough by itself.
The court looked at prejudice. She:
- took all the time off she requested,
- did not exhaust paid time off, and
- admitted in a message to a coworker that she should have taken family medical leave but did not want to let the company down.
Result: no evidence that the notice failure changed what she actually did, so no interference.
3. Retaliation: performance problems were already on the record
Even assuming her family-related PTO counted as exercising FMLA rights, the retaliation claim fell apart at the pretext stage.
The record showed:
- performance concerns about her U.S. accounts as early as July 2020,
- consistent focus on sales pipeline and future revenue in both mid-year and year-end reviews, and
- a termination explanation that matched those earlier concerns.
Her response was essentially that the performance assessment was unfair and that external factors caused some lost business. The court held that disagreement with a performance review is not enough to show pretext. The timing of her last one-day absence twelve days before termination did not overcome that history.
Result: no triable retaliation claim.
What employers and HR should take from this
- Start documenting before leave is on the table.
If an employee is struggling, get specific, contemporaneous performance notes into the file early. It mattered here that concerns were written down before any family-related time off. - Approve the leave and keep your comments separate.
Managers should approve qualifying leave cleanly, avoid commentary about the burden of absences, and keep performance feedback focused on concrete business issues. - Give the FMLA notices anyway.
This employer won despite a notice lapse, not because of it. When you learn an employee is caring for a family member with a serious health condition, trigger your FMLA process even if they are using PTO.
The bottom line
When performance problems are real, documented, and already in motion before an employee takes family-related time off, and when managers never link those issues to leave, courts are much more willing to grant summary judgment on FMLA interference and retaliation claims.