An employee is on maternity leave and it does not look like she is going to be returning to work. Should you go ahead and terminate her employment during the maternity leave? Wait until it is over to terminate her employment? Require her to come in for an exit interview? Almost all of my clients have struggled with this scenario and held their breath hoping it would all work out for the best. Winn-Dixie recently defended its decisions in just such a scenario. In Varonica Udeh v. Winn-Dixie Montgomery, LLC, the Eleventh Circuit reviewed a jury’s verdict, concluding that the jury and Winn-Dixie were right.
Varonica Udeh started work for Winn-Dixie in January 2009 and needed maternity leave six months later in June. We can assume she did not qualify for FMLA leave given her short term of employment. Regardless, when she asked for maternity leave, Winn-Dixie said fine, got her the paperwork, and she went out on leave. Although there was some dispute about whether her maternity leave paperwork was complete, there was no dispute that she took the leave. Importantly, Udeh did not claim that anyone attempted to discourage her from taking leave.
In July, Udeh called the store manager, Monica Sledge, to discuss her plan to return to work. This is where the disputes of fact begin. Sledge testified that they discussed Udeh’s return to work to an available position and Sledge penciled her in on the schedule (a copy of which she did not keep). According to Sledge, Udeh called back to say she was not going to return to work and never showed up for the scheduled shifts. For her part, Udeh testified that she was planning to return to work once her doctor released her in August, but the store co-manager, Lorre Prisby, called to tell her she was terminated. (Prisby denied the call.) Winn-Dixie terminated Udeh about 10 days later—six weeks and one day after she began her maternity leave. Udeh did not return to work for Winn-Dixie and drew unemployment benefits for 18 months before returning to work at another employer.
The district court decided that there were disputes of material fact, so it denied Winn-Dixie’s motion for summary judgment and the parties tried the case. After four days of trial, the jury found in Winn-Dixie’s favor and Udeh appealed.
Eleventh Circuit Affirms Jury Verdict
Udeh argued that there was plenty of evidence that Winn-Dixie terminated her because of her pregnancy and a reasonable jury could not have concluded otherwise. The court rejected all of her arguments, and I will only address a few of them here. First, Udeh argued that the jury could not have believed Sledge instead of her because, in part, Sledge did not have the schedules to show that Udeh had been scheduled for shifts for which she did not show up and Sledge could not recall those dates. The court said it was reasonable for a jury to believe Sledge’s testimony that the store did not keep the written schedules and she could not recall the specific dates because it happened several years before.
Second, Udeh said that Winn-Dixie did not follow its usual practice in terminating no call/no shows because it did not call her when she did not show up before the store terminated her. The court rejected this argument, pointing out that Sledge testified they did not call Udeh about the no show because she had already told Sledge she was not returning to work.
Finally, Udeh argued that Winn-Dixie terminating her six weeks and one day after she began her maternity leave showed it was related to her pregnancy. The court said that was not necessarily the case—Udeh said Prisby had called her 10 days earlier to tell her about the termination. The court also noted that there was no evidence that anyone at Winn-Dixie discouraged Udeh from taking her maternity leave.
The court concluded as follows:
In short, there is substantial evidence to support the jury’s conclusion that Plaintiff was not terminated because of her pregnancy but instead because she abandoned her job, most notably, Sledge’s testimony that Plaintiff was terminated for job abandonment, Plaintiff’s testimony that none of her supervisors discouraged her from taking leave or reacted negatively to her request for leave, and other evidence that Plaintiff stayed out of the workforce for eighteen months after filing a claim for unemployment compensation, which the jury might have viewed as confirmation of her desire not to work.
Winn-Dixie won this case, but only after a long legal battle and a jury trial. The court’s opinion makes clear that Udeh’s staying off work for 18 months was a persuasive fact—but that is not a fact on which employers should count when making these decisions. Here are three things that employers can control that may get you summary judgment instead of a jury trial:
- Follow your procedures. If your policy or practice is to call an employee before terminating for no call/no show, call the employee. It may seem silly if the employee told you earlier that she was not going to return to work, but go ahead and check that box.
- Document your conversations. Even if you do not make the final call and rely on the employee’s earlier representation about not returning to work, send a letter documenting your conversations with the employee and the basis for the termination. The letter should outline the facts, the prior conversations, and the decision. I like to end with a statement that puts the ball in the employee’s court—something like “If I have misunderstood our conversations, please let me know. If I don’t hear from you by DATE, we will proceed with your termination.” Send the letter via U.S. mail, email or whatever method works best.
- Keep all of the relevant records. Even if the employee appears to have abandoned her job, keep the records showing that you scheduled her for a shift and she did not show up. You may never need them, but you will be glad you have them if you do.