Labor & Employment Law Daily Wrap Up, DISCHARGE—M.D. Tenn.: Employee fired during FMLA leave and replaced by younger supervisor gets case to trial, (May 27, 2025)

By Marjorie Johnson, J.D.

The employee challenged the suspicious timing of and justification for her placement on a PIP and poor review, and whether the employer relied on them good faith when it terminated her.

A 64-year-old service manager for a restaurant, who claimed her employer violated its own policies by placing her on a PIP the day before she was scheduled to begin her second FMLA leave and then manufactured a poor performance review to justify terminating and replacing her with a substantially younger supervisor, survived summary judgment on her claims of age discrimination and FMLA interference and retaliation, ruled a federal district court in Tennessee. Many triable issues existed, including whether she was part of a workforce reduction considering the employer had closed two of its nearby restaurants, whether her placement on a performance improvement plan (PIP) and a poor review were justified, and whether another service manager who had taken FMLA leave and wasn’t terminated was a proper comparator (Clark v. Restaurant Growth Services, No. 3:24-cv-00825 (M.D. Tenn. May 21, 2025)).

Younger supervisor. Restaurant Growth Services operates numerous O’Charley’s restaurants in several states. In 2008, the employee was hired as service manager and worked at multiple locations. During the relevant period, she worked at one of the restaurants located in middle Tennessee where she was supervised by a general manager (GM) who was about 30 years younger than her.

Bereavement and FMLA leave. In 2022, she suffered the loss of both her father and her longtime husband, prompting her take a month of bereavement leave. The parties disputed whether her grief impacted her performance, but she acknowledged she had communication issues arise with younger team members. After she injured her rotator cuff later that year, she took approved FMLA leave for surgery in 2023 from February 24 to April 7.

PIP day before second FMLA leave. After she returned to work in April, her supervisor conducted her quarterly performance review, grading her a two out of three for both performance and potential. On May 17, she was approved for a second FMLA leave to begin on June 19 to undergo additional surgery. One day before her leave was set to begin, her supervisor and the area director placed her on a performance-improvement plan (PIP).

Fired and replaced by supervisor. While she was on her FMLA leave, the employer closed two nearby restaurants. It also transferred the GM from one of those restaurants to the employee’s location and demoted her supervisor to service manager (the employee’s position).

On July 9, the area director completed the employee’s second quarterly performance review, scoring her one out of three on performance and potential, adding “[c]urrently on [leave of absence]. PIP communicated before leave.” When she attempted to return to work on April 1, the restaurant’s new GM turned her away. Afterwards, the employer terminated her as of August 6, though the parties disputed when the decision was made.

Reduction in force? At the outset, the court rejected the employer’s contention that the employee’s claims of age discrimination under the ADEA and the Tennessee Human Rights Act failed as a matter of law since she could not meet the heightened standard required at the prima facie stage in a reduction in force (RIF) case. Concluding that a triable issue existed as to whether an actual RIF occurred, the court noted that while the employer eliminated managerial positions in the Nashville area as a result of restaurant closures, there was also evidence that it did not eliminate the employee’s specific position and instead replaced her with her supervisor. Significantly, the employer failed to show that the supervisor was assigned to perform her duties in addition to other duties, or that her work was redistributed among other existing employees already performing related work.

Causation. A triable issue also existed as to causation. In addition to evidence that she was experienced at being a service manager and her supervisor was approximately 30 years younger, she testified that her supervisor made multiple comments about her age at different times, such as “you think you can make it around the restaurant without having to use you cane?” She also claimed that other team members commented and joked about her age, such as calling her “granny” and “double ARP.” In addition, the record suggested that her communication issues were mostly with younger team members.

Pretext. Finally, although “somewhat a close call,” pretext could be inferred from factual disputes over whether the employer placed her on the PIP in violation of its own disciplinary policies and then manufactured a poor performance review to justify terminating her and replacing her with her substantially younger supervisor. While the employee did not dispute that her second quarterly review was poor and that the employer used the review and the PIP as a basis to terminate her, she challenged whether the PIP and review were justified and whether the employer relied on it them good faith when it decided to terminate her.

FMLA retaliation. The court also rejected the employer’s contention that the employee’s FMLA retaliation claim failed because another manager impacted by the closure of the two nearby restaurants also took a FMLA leave around the same time but was not terminated. However, causation could be inferred from the short temporal proximity between her request for a second leave and the PIP, and a jury could also surmise that her leaves were especially burdensome as compared to the purported comparator. Indeed, she took two separate leaves, and her supervisor testified she thought her leaves negatively impacted both the restaurant and the employee’s performance. There was also no evidence the supervisor who ultimately replaced the employee took any FMLA leave.

FMLA interference. The employer also unsuccessfully argued that the employee failed to establish a prima facie case of FMLA interference since her claim was based on the same facts as her retaliation claim. While courts are split on how to approach this argument about duplicative claims, “the Sixth Circuit has accepted the idea that the denial of benefits can also constitute retaliation.”

The case is No. 3:24-cv-00825.

Judge: Crenshaw, W.

Attorneys: Matthew R. Zenner (Zenner Law, PLLC) for Jan Clark. Benjamin P. Lemly (Ogletree, Deakins, Nash, Smoak & Stewart) for Restaurant Growth Services, LLC.

Companies: Restaurant Growth Services, LLC

Cases: Discharge AgeDiscrimination Discrimination EmployeeLeave Retaliation StateLawClaims TennesseeNews