In Bailey v. Oakwood Healthcare, Inc., No. 17-2158 (April 23, 2018), the 11^th Circuit found that an employer’s decision to terminate an employee on the day she returned from maternity leave was not discriminatory because during her leave, the employer discovered deficiencies in performance and falsifications in her employment application.  The decision in Bailey reinforces that taking a protected leave does not insulate an employee from termination for poor performance and other inappropriate conduct.  However,  it should also serve as reminder that the perceived unfairness associated with a termination so close in time to taking a protected leave may result in a lawsuit (and the headache that come with it).   In so ruling, the Circuit concluded that the timing of the employer’s termination of Bailey was “unfortunate” and that the “manner in which the decision was communicated was clumsy.” Still, the 11^th Circuit found “no fault” in Oakwood’s decision to terminate Bailey and noted that the Court had “no authority to interfere in the private personnel management matters, however unwise or unfair they may appear to be.”

Employers should always be cautious when terminating an employee who has taken a protected leave (or engages in other protected activity).  Where an employer has a good reason for termination and that reason is supported by objective evidence, an employer may consider (carefully) terminating that employee.  Be mindful, however, that even with objective evidence – such as a falsified employment application in this case – the employer could still be liable for discrimination or retaliation if, for example, it knew of other employees who engaged in similar activity but terminated only the one who engaged in protected activity.