In employment lawsuits being filed now, retaliation claims appear to be more prevalent than discrimination claims. Despite an employer having strong evidence of poor performance and misconduct, they may still be held liable for retaliation if they take adverse action soon after protected conduct occurs.

For example, the U.S. District Court for the Eastern District of Pennsylvania has ruled that a Maintenance Director at a nursing care facility can pursue his Family and Medical Leave Act (FMLA) claims to trial, despite being fired for monitoring his supervisor's work attendance.  

Louis DeCicco was hired by Mid-Atlantic Healthcare LLC as the Director of Maintenance for Maplewood Nursing and Rehabilitation Center – providing long-term nursing care and rehabilitation services.

During a meeting in January 2012, Mr DeCicco was issued with a performance improvement plan by his supervisor, Sarah Balmer.  The performance plan informed Mr DeCicco that he was under review for:

• not providing adequate training and mentoring to a subordinate
• failing to resolve long-standing issues with security staff
• failing to respond to facility phone calls
• failing to take a more active role in resolving the facility's maintenance issues

However, at about this time, Mr DeCicco began monitoring Sarah Balmer's work attendance, reviewing footage installed at Maplewood.  He also reviewed Sarah Balmer's timesheets and prepared logs of her absences from the facility – which he was not authorized to investigate.  

Five months later, a second performance improvement plan was issued to Mr DeCicco by Sarah Balmer. On the same day he also received a written warning for addressing a contractor in an unprofessional way and a verbal warning for allegedly not taking certain action, which resulted in the facility at Maplewood being short of one bed.

Later that month, Maplewood Human Resources Director, Stephanie Massey, was asked by Mr DeCicco to supply FMLA paperwork. As Mr DeCicco was the primary caregiver for his disabled father he intended to use FMLA leave to care for him. Stephanie Massey provided the paperwork to Mr DeCicco immediately.

Mr DeCicco met up with Caroline Eldridge - who was the new Human Resources Director – on June 15, to discuss several issues. They included Mr DeCicco's performance improvement plans; the alleged absenteeism of Sarah Balmer and Mr DeCicco's perceived lack of support from Mid-Atlantic. At that meeting, Mr DeCicco told Caroline Eldridge that he expected to have his employment terminated.

Three days later, Mr DeCicco returned his FMLA certification of health care provider form to Mid-Atlantic's human resources department.

Later the same evening, Sarah Balmer e-mailed John Fredericks (Regional Director of Operations), stating that she intended to terminate Mr DeCicco in two weeks time. She added that she had become aware that Mr DeCicco was monitoring her attendance and stated that he was not the type of person she wanted working for her.  She explained that he had been on a performance improvement plan since January 2012 and that his comment on her attendance was a ‘lie’.

On June 19, Sarah Balmer issued a final written warning to Mr DeCicco and placed him on another performance improvement plan, which was due to expire on July 3.

On June 20, John Fredericks terminated Mr DeCicco’s employment in the presence of the regional HR Director.  At that time, Mr DeCicco was 47 years of age.

He was replaced by a man Mid-Atlantic claimed was 43 years old at the time he was hired.

In May 2014, Mr DeCicco filed a lawsuit claiming age discrimination under the Age Discrimination in Employment Act and the Pennsylvania Human Rights Act.  He also claimed interference with his rights and retaliation under the FMLA.

The court found that Mr DeCicco was placed on several written performance improvement plans warnings during his employment and had not contested that he reviewed camera footage, etc to conduct an independent investigation of Sarah Balmer’s attendance record – which he did only after he was placed on a performance improvement plan.

The court found that Mr DeCicco failed to show that any of Mid-Atlantic's reasons for firing him were misleading and dismissed his age discrimination claims.

However, with regard to Mr DeCicco's FMLA claims, the court found that his FMLA request and completed application were so close in time to his final warning and dismissal that it was unusually suggestive of retaliation. The court denied Mid-Atlantic summary judgment on Mr DeCicco's FMLA claims and allowed them to proceed to trial.