We’ve all been there: An employee takes time off (think FMLA or other protected leave), and then you need to take an adverse employment action. Can you do so and risk the inevitable retaliation claim? Do you have to wait some amount of time so the employee’s potentially protected activity isn’t so fresh on everyone’s mind?
We all know that “bad facts make bad law” but the Second Circuit’s opinion in Haran v. Orange Business Services shows the reverse is also true: Good facts can make good law.
Patricia Haran was a senior account manager for Orange Business Services (OBS). From 2017 to 2019, she successfully handled “B-end” accounts. In January 2020, OBS gave Haran additional responsibility, and she began managing “A-end” accounts as well.
In her mid-2020 performance review, her manager, Adam Kimmick, noted that she had challenges working with the new accounts “including issues with her projected revenue and miscommunications with her team and with a client.” Given her prior performance, Kimmick stated his expectation that her performance for the remainder of 2020 would be on track to meet business objectives and gave her an overall rating of “fully successful.”
In October 2020, Haran requested time off to take care of her daughter, who needed surgery. Kimmick told her to take all the time she needed. Neither Haran nor Kimmick mentioned the FMLA. Over the course of three...
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