An employer did not retaliate against a long-service employee for taking leave under the Family and Medical Leave Act when it terminated her for poor performance after she returned, the Seventh Circuit decides.

The former employee had a history of absenteeism and making numerous errors in her work, but had been taking FMLA leave just prior to management’s decision to terminate her because of performance issues such as a “large backlog” of work she had not completed, member complaints, and misdirected checks. When he made the decision to terminate, the executive director did not have any knowledge of her FMLA leave, the Court notes.

Although the terminated employee argued that the company’s failure to follow its outlined progressive discipline procedure demonstrated retaliation, the Court says the procedure also allowed for “termination in the event of continued failure to respond to previous warnings. “Since she received several warnings before termination and because the employer had the ability to begin disciplinary action at any step, it did not violate its disciplinary policy when the complainant was terminated, the Court says. The Court also observes, “While a sudden decline in performance evaluations after an employee engages in a protected activity may provide circumstantial evidence of discriminatory intent, a decline in performance before the employee engages in protected activity does not allow for an inference of retaliation.” Long v. Teachers Retirement System of Illinois