Protecting Employers Since 1985

August 2012

By: James B. Sherman, Esq.

A recent Eighth Circuit Court of Appeals decision demonstrates how not to treat an employee after he/she gives notice that they will shortly need leave under the Family Medical Leave Act (FMLA). In Marez v. Saint Gobain Containers, Inc., No. 11-2354 (8th Cir., July 31, 2012) an employee notified her employer that she would need FMLA leave due to her husband’s upcoming surgery. Although she was unsure of the surgery’s date, she explained that it would be “soon.” Approximately forty-eight (48) hours later the employer called the employee into the office and terminated her employment. The employer provided her with no fewer than three (3) reasons for the termination decision. Thereafter, the employee sued alleging, among other things, unlawful retaliation for asserting her FMLA rights.

In upholding a $413,000.00 jury verdict for the employee ($206,500.00 for actual damages and an additional $206,500.00 in liquidated damages), the court was troubled by two things. First, the court noted that it had “rarely been faced with two events so close in time” – meaning the time between notifying her employer of the need to take FMLA leave and the employer’s decision to terminate her employment. Second, the employee provided evidence showing other employees who engaged in the exact same behavior not only kept their job but in some cases were not even disciplined. Accordingly, it was appropriate for a jury to determine whom to believe, and in this instance, they found the employee more credible.

The lesson here is twofold. First, the length of time between engaging in protected activity and taking adverse employment action is not only important, it is crucial. Unlike other circuits, the Eighth Circuit, which governs federal claims in Minnesota, have held that timing alone, if very close, can be enough to infer a retaliatory motive. Yes, there can be intervening events providing a solid legitimate reason for making the decision, but action taken within mere hours or days of the protected activity is likely to land you before a jury. Second, applying discipline consistently across the board can help in such cases. If the employer in this case had a consistent history enforcing its policies such that employees are uniformly terminated for the exact same reasons stated to the plaintiff, this case may well have come out differently.

Many of these cases are delicate and it is advisable to consult with experienced legal counsel who are well versed in employment law and the latest trends in the law concerning rising claims of retaliation. Of course, the hundreds of employers who participate in Wessels Sherman’s phone consultation program know that they can call any of our experienced employment law attorneys for specific advice on how to proceed in these and many other circumstances each step of the way, all without worrying about legal fees. If interested in this valuable service, contact Ms. Julie Anna Kruse at (952) 746-1700, or email

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