01-20-2026
An employer is entitled to terminate an employee with poor performance, even during FMLA leave.
Patricia Haran worked for Orange Business Services (OBS) as a senior account manager. Her supervisor indicated in her performance review that there were issues with Patricia’s communication skills, however, he did give her an overall positive rating.
After the review, Haran’s daughter developed medical issues requiring surgery and treatment. Haran requested and received time off to care for her daughter. She took seven and a half days of intermittent leave over the next three months. At the same time, Haran’s work was the subject of additional scrutiny from her supervisor. Because of the pressure to perform, Haran stated that she chose to minimize time off work, contrary to her own wishes. Nobody at OBS made any negative comments about her time off or discouraged her from taking it. In her next performance review, Haran received a rating of “improvement needed.” Haran then took another paid day off to care for her mother. OBS terminated Haran’s employment less than two weeks later for failing to meet her performance quota.
The Second Circuit Court of Appeals affirmed a lower court decision dismissing Haran’s FMLA leave claims. It was undisputed that Haran received approval for all of her time-off requests and did not receive any negative feedback about it from her employer. However, Haran failed to provide any evidence to counter OBS’s legitimate, non-discriminatory explanation for her termination to demonstrate that it was pretextual. Moreover, the timing between her termination and request for a day off did not raise a triable issue of fact. Most of Haran’s leave occurred several months before her firing, and her supervisor raised concerns about her performance before she began taking intermittent days off.
Takeaways: In ruling for the employer, the court acknowledged the employer’s prompt approval of the time-off request, its neutral reaction to her time off, and confirmed the importance of documenting employment issues in real time.