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The Employer Handbook Blog
He Was Put on a PIP the Day He Returned From FMLA Leave. His Employer Still Won.
An employee returned from his third round of FMLA leave and found a performance improvement plan waiting for him. That looks terrible. But a jury will never hear about it.
TL;DR: A manufacturing engineer was placed on a PIP immediately after returning from his third FMLA leave and later terminated. He sued for race discrimination, retaliation, and FMLA retaliation. The Eleventh Circuit affirmed summary judgment for the employer on all claims. Suspicious timing alone doesn’t establish pretext when the employer has legitimate, documented performance reasons, and the plaintiff couldn’t show the performance justification was false.
Three FMLA Leaves, a PIP on Return, and a Termination. Then Litigation.
The plaintiff, a Black man, began working for the employer at its aircraft assembly facility in Mobile, Alabama in 2019. After the employer learned he had an associate’s degree in applied sciences, it recruited him into a manufacturing engineer role. He took three rounds of FMLA leave. Immediately upon returning from the third, the employer placed him on a performance improvement plan. He was later terminated. The employer’s stated reason: poor performance tracked and documented across multiple trainers and scoring sessions going back months before the PIP was issued. The plaintiff sued for race discrimination and retaliation under Title VII and Section 1981, and for FMLA retaliation. The Eleventh Circuit affirmed summary judgment for the employer on all claims.
Suspicious Timing Is Not Enough. You Need More.
The timing of the PIP was the plaintiff’s strongest argument. The Eleventh Circuit acknowledged it: the court assumed he had established a prima facie case of FMLA retaliation precisely because the PIP came immediately upon his return from leave. But assumption of a prima facie case is not a win. It just shifts the burden.
Once the employer put forward a legitimate, non-retaliatory reason for the PIP and termination (poor performance), the burden shifted to the plaintiff to show that reason was false or pretextual. He couldn’t. No comparator employees who performed similarly and weren’t disciplined. No evidence the performance documentation was fabricated or inconsistently applied. No “convincing mosaic” of circumstantial evidence pointing to discrimination or retaliation.
Proximity is relevant, the court held, but it has to be paired with something else: falsity of the stated reason, inconsistent treatment, or other evidence of discriminatory intent. Without it, summary judgment stands.
Employers who document performance issues carefully and independently of protected activity are in a far stronger position when adverse action timing looks bad. The documentation is what converts a suspicious-looking PIP into a defensible one.
What to Lock Down Before the PIP Conversation
The date on the documentation is as important as what it says. Courts don’t just ask whether performance concerns existed. They ask when the employer first put them in writing. A performance record assembled after a termination decision, even if the underlying concerns were real, looks like justification-building rather than genuine management. The employer here survived because scoring sessions and trainer assessments went back months before the PIP. That chronology is what made the timing survivable. If your first written record of performance problems is dated the same week as the adverse action, you’ve handed the plaintiff a pretext argument.
Comparator management is a litigation decision you make before anyone is fired. Plaintiffs defeat summary judgment most often not by proving discrimination directly, but by showing a similarly situated employee outside the protected class was treated differently. Employers rarely think about comparators until litigation starts. Before issuing a PIP or termination, HR should identify who else in similar roles has faced comparable performance issues and verify the response was consistent. If it wasn’t, document why. Unexplained inconsistency is pretext evidence regardless of how strong the underlying performance case is.
A PIP that gets extended without clear criteria creates more risk than it resolves. This employer extended the PIP after the employee failed a final task assessment, which is defensible when extension criteria are objective and documented. The risk comes when extensions are open-ended or based on supervisor discretion without written benchmarks. Courts scrutinize those extensions as evidence the process was subjective or predetermined. If your PIP framework doesn’t specify in advance what triggers an extension versus a termination, you’re giving a plaintiff room to argue the outcome was decided before the process concluded.
Timing will always look bad when an employee is disciplined or terminated in close proximity to protected activity. That’s unavoidable. What’s avoidable is having nothing else in the record to explain it.