Some thoughts on summary judgment from the 5th Circuit

Sometimes you need a good, solid case to stand for a good, solid principle. Here is one. An employee is a trainer at a call center. She becomes pregnant and begins her FMLA leave in February 2009. Her employer conducted a reduction in force just before she left, announcing that this layoff was the last and there would be no more. But she was terminated just before she came back from FMLA leave. Why? The employer claimed it did not need a trainer because there were fewer employees to train. She sued, claiming FMLA retaliation. All this is set out by the 5th U.S. Circuit Court of Appeals in its April 28 decision in Leal v. BFT LP. The 5th Circuit affirmed the trial court's grant of summary judgment. On appeal, Leal argued that the email was evidence that her employer's reason was pretext. And, to boot, she was a good employee. But the 5th Circuit essentially said these arguments were so much noise. It held that these points never took direct issue with the reason given for her termination, namely, the simple math of fewer employees equals less need for an employee to train them. The bottom line: For a court to deny summary judgment, there must be congruence between the reason the employer gives for its action and what the employee lobs back to refute it. No congruence, summary judgment granted.