For an example of how disparaging comments about an employee’s need for leave can result in a lawsuit, keep reading. Not long ago, the Eleventh Circuit Court of Appeals (federal court deciding appeals from Alabama, Florida, and Georgia) held that a real estate company’s decision to fire an excessively tardy executive assistant for her refusal to sign a performance memo, amidst her bosses’ negative comments about her need for medical leave, could be unlawful retaliation. See Munoz v. Selig Enters., 981 F.3d 1265 (11th Cir. 2020). Let’s explore this a little further.
The Facts
Between 2005 and 2013, Kendra Munoz was an executive leasing assistant for Selig Enterprises, a Georgia real estate management entity. Munoz reported directly to vice-presidents Jim Saine and Kent Walker. In 2010, Saine and Walker disciplined Munoz for her poor attendance and excessive tardiness. In 2011, Munoz began experiencing reproductive health problems. As Munoz claimed, in 2012 she notified Saine and Walker that she may have uterine fibroids and requested an accommodation for her ongoing tardiness, early departures, and partial-day absences. Munoz further alleged that in 2013 she notified Saine and Walker that she was diagnosed with endometriosis and would soon begin treatment, which Saine and Walker denied. However, it remained undisputed that Selig never provided Munoz with any FMLA certification documentation or otherwise advised her of her right to request an accommodation for her health condition.
Indeed, between 2009 and 2013, Munoz was late for work some 255 times, each of which she claimed to be medically necessary. While Selig was relatively permissive of Munoz’s tardiness, Munoz claimed that her bosses generally disapproved of her need for medical leave. As Munoz alleged, on one occasion upon her late arrival, Saine remarked: “Oh, look what the cat drug in.” Further, Walker admitted that he had referred to Munoz’s condition as being “female issues” or “female problem(s).” However, both Saine and Walker observed that, aside from Munoz’s frequent absenteeism/tardiness, she was also insubordinate and often worked on personal matters during her work time.
In May 2013, Saine and Walker met with Munoz and issued her a performance memo for poor attendance/tardiness, misuse of work time, and workplace disharmony, among other things, and warned her that failure to improve would result in discipline. According to Munoz, the theme of the meeting was “you’ve been out” and “you’ve been late.” Munoz refused to sign the performance memo believing that her endometriosis would require continued absenteeism/tardiness, which might lead to her termination. In addition, Munoz claimed that Saine remarked: “Oh, nobody’s sick that long. You’ve been sick for over a year. Who’s sick that long; over a year you’ve been sick?” However, Saine and Walker denied that Munoz ever offered any health-related reason for refusing to sign the memo, much less made any reference to endometriosis.
In sum, Munoz, Saine, and Walker hotly contested the underlying facts, namely whether Munoz’s excessive absenteeism/tardiness was primarily due to her illness or instead due to non-health-related reasons. However, undisputed was the fact that Selig decided to terminate Munoz in June 2013 due to her refusal to sign the performance memo.
The Analysis
Following her termination, Munoz filed a federal lawsuit against Selig, alleging that the company had discriminated against her under the Americans with Disabilities Act (ADA) by failing to accommodate her disability and firing her on account of her disability. Munoz also claimed that Selig interfered with her rights and retaliated against her under the Family Medical Leave Act (FMLA) by failing to notify her of her right to take leave and firing her for her intent to take future leave. Whereas the trial court dismissed the entirety of Munoz’s claims, she appealed to the Eleventh Circuit. On appeal, the Munoz Court ultimately upheld the dismissal of Munoz’s ADA and FMLA interference claims, but reversed the trial court on Munoz’s FMLA retaliation claim, finding that a jury, and not the court, must ultimately decide these facts.
Specifically, as to the ADA claim, the Munoz Court found that Munoz failed to prove that she was disabled within the meaning of the Act. While the Court did not decide whether endometriosis itself was a disability, it observed that Munoz had failed to carry her burden to show that her condition substantially limited her ability to reproduce, which was fatal to her ADA claim. Similarly, regarding Munoz’s FMLA interference claim, the Court opined that Selig’s failure to notify Munoz of her right to take FMLA leave may have interfered with her legal rights. But, the Court held that Munoz failed to demonstrate that she had suffered any resulting harm from Selig’s failure to notify her of her FMLA rights, as the company had provided Munoz with all the leave that she had requested.
However, as to Munoz’s remaining FMLA retaliation claim, the Court took a more benevolent view. Concerning Munoz’s assertion that Selig retaliated against due to her continued need for FMLA leave, the Court concluded that Saine’s and Walker’s disciplinary action and disparaging comments about Munoz’s attendance/tardiness were in such close proximity – merely days – to Munoz’s disclosure of her diagnosis, such that a reasonable jury might find that Selig’s reasons for terminating her were a pretext for retaliation. As to Munoz’s claim that Selig also retaliated against her for refusing to sign the performance memo, the Court reached a similar conclusion, holding that a reasonable juror might find Munoz’s belief that she would be fired for taking additional FMLA leave to be reasonable and thus protected activity.
In sum, without deciding the merits of the retaliation claims, the Munoz Court held that there were simply too many disputed issues of fact and therefore a jury trial was necessary to decide whether Selig had retaliated against Munoz in violation of the FMLA.
The Takeaway
Words have consequences, and this case highlights the danger of managements’ stray remarks about an employee’s health condition and need for medical leave, and the impact in creating the appearance of discrimination/retaliation. Whereas Munoz failed to prove that she was disabled, with a few more facts in the record she probably would have met her burden, as the ADA takes a liberal view of “disability.” And, Selig’s termination of Munoz could have readily led a jury to decide that Munoz’s termination was due to management’s frustration over her medical condition, particularly when considering the “cat drug in” and “nobody’s sick that long” commentary. Those remarks suggest both discriminatory and retaliatory intent, and for that, Selig was particularly fortunate here.
This case also illustrates the notion that an employee’s refusal to sign disciplinary documentation may open the door to an otherwise nonapparent retaliation claim. Whereas an employer may generally discipline or even terminate an employee simply for refusing to sign disciplinary documentation (oftentimes viewed as insubordination), the Munoz Court took a different view. Munoz argued that, considering comments by and conversations with Saine and Walker, she reasonably believed that the memo interfered with her FMLA rights and thus her termination for refusing to sign it was protected activity, leading to the retaliatory act of termination. Based on these facts, the Court held that a jury must determine whether Munoz’s belief was indeed reasonable and her refusal to sign protected, and if so, whether Selig has a retaliatory motive for terminating her. The Court’s view of the case should cause employers to pause, reflect, and deliberate before disciplining any employee for refusing to sign performance documentation.
There were a lot of issues to contemplate here. We have considerable experience handling difficult FMLA and ADA cases like this one, requiring a delicate touch and a tight strategy. Perhaps we can help your business avoid the mishaps that needlessly result in employment law claims. So, watch what you say about the FMLA, and to learn more about our employee leave-related expertise, contact Agenzia.
(CBLLC.6.2.2026)
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