Labor & Employment Law Daily Wrap Up, EMPLOYEE LEAVE—8th Cir.: FMLA interference claim of Hardee’s store manager, fired after diabetic episode, revived by en banc court, (Jun 2, 2025)

By Ronald Miller, J.D.

“Given the evidence suggesting a causal connection between [the employee’s] condition and her [violation of the attendance policy], the district court erred in concluding as a matter of law that” her misconduct was not related to a serious health condition.

In an en banc decision, the Eighth Circuit concluded that a store manager’s interference claim under the FMLA survived an employer’s motion for summary judgment. After the employee suffered a diabetic episode that kept her out of work for several days, the employer fired her for failing to notify a supervisor in violation of its attendance policy. The appeals court found the employee’s evidence suggested a causal relationship between her medical condition and her violation of the attendance policy. The court, however, affirmed the lower court’s grant of summary judgment to the employer with respect to her claims for FMLA retaliation and disability discrimination under the ADA and state law. Judge Erickson filed a separate opinion concurring in part and dissenting in part, in which Chief Colloton and Judges Smith, Shepherd and Kelly joined (Huber v. Westar Foods, Inc., No. 23-1087 (8th Cir. May 30, 2025)).

Diabetic incident. The employer operates Hardee’s restaurants across Nebraska and Iowa. The employee managed one of those restaurants. As a restaurant manager, the employee often began her shift at 5 a.m., opening the restaurant an hour later. However, she had trouble following the employer’s attendance policy, specifically the requirement that late or absent employees “call the management person in charge immediately.” Her violations involved leaving a shift without notifying her district manager and missing a shift without notice.

About two months into the job, the employee received a diabetes diagnosis, which required her to take insulin at work and eat meals during her shifts. Diabetes also caused her to miss work. In one incident, she woke up experiencing low blood sugar and a doctor placed her on an IV for the rest of the day. As a result, the restaurant opened more than five hours late because she never notified anyone that she would be absent.

The employee did not call in until the next day, several hours after her next 5 a.m. shift was set to start. During the call, the employee told her supervisor what had happened and informed her that she needed to take sick leave. The supervisor’s notes say the employee had been at the doctor because “her levels of her diabetic w[ere] off.” About 30 minutes after the call, the employer decided to terminate her employment.

Leave request. Before she found out about the employer’s decision, the employee tried to request FMLA leave for the days she missed. The employer denied the request for failing to provide notice and informed the employee of her termination for failing to follow notice procedures.

Thereafter, the employee filed suit against the employer alleging interference and retaliation under the FMLA and disability discrimination under the ADA and the Nebraska Fair Employment Practice Act. On cross-motions for summary judgment, the district court granted the employer’s motion.

FMLA interference claim. In her complaint, the employer alleged that the employer both interfered with her effort to take FMLA leave and retaliated against her for her request for leave. To succeed on an interference claim, the employee must show that “she was eligible for... leave,” that her employer “knew she needed [it],” and that it “denied her a[]... benefit to which she was entitled.” Here, the employer’s main argument was that it did not know about the employee’s need for leave before it decided to fire her.

“The employer’s duties are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of FMLA leave.” In this case, the employee provided the employer with a doctor’s note explaining the seriousness of her condition, including the need to be off work while she recovered. Add the fact that her supervisor’s notes from her call-in stated that “her levels of diabetic w[ere] off,” and a reasonable jury could conclude that the employer knew she “need[ed] FMLA leave” for a serious health condition.

Late notice. A jury could also find that she was entitled to leave despite the late notice. Employees must provide advance notice “[w]hen the leave is foreseeable.” When it is not, notice must be “as soon as practicable under the facts and circumstances of the particular case.” In this instance, the appeals court determined that a call the morning after the employee received emergency medical treatment may have been soon enough. Because evidence pointed both ways, exactly when it was “possible and practical” for the employee to notify the employer of her need for FMLA leave presented a classic jury question. So did the employer’s argument that it terminated the employee for the “wholly unrelated” reason that she violated the company’s attendance policy.

FMLA retaliation claim. With respect to the employee’s FMLA retaliation claim, she argued that the employer fired her because of her “use of leave.” The appeals court concluded that nothing in this case pointed to an illegal motive. The employee identified a few stray comments by her direct supervisor and a prior supervisor months before she was fired, but none of those comments provided a “specific link” to FMLA leave.

Moreover, the employee failed to establish retaliatory intent circumstantially through the three-part McDonnell-Douglas burden-shifting framework. The employer’s decision to fire her came just 30 minutes after she spoke to her supervisor about her diabetic episode and mentioned her need to take off work. Temporal proximity between a protected activity and a decision to fire, demote, or take other adverse action against an employee can support an inference of causation. But the ultimate question at step one remains whether the evidence “gives rise to an inference of a retaliatory motive.”

The appeals court determined that on these facts, the “coincidental timing” in this situation did not create an inference that her firing was caused by retaliatory intent. Both before and after the employee’s firing, the employer consistently pointed to her violations as a legitimate, nondiscriminatory concern about her performance. When a violation of company policy was “a problem before the employee engaged in the protected activity,” it both “undercuts the significance of the temporal proximity” and provides “an explanation” for it “other than a retaliatory motive.” Thus, the employee had not “carried the burden” needed to survive summary judgment.

Disability discrimination claim. The employee did not fare any better with her disability discrimination claims under the ADA and the Nebraska Fair Employment Practice Act. The parties agreed that diabetes is a disability and that the employee “was qualified to perform the essential functions of the job.” Rather, the disagreement was once again over causation: whether the employer’s decision to fire the employee was “actually motivated” by her diabetes.

Here too, the appeals court concluded that no reasonable jury could find that the decision to fire the employee was motivated by her diabetes.

The employee claimed to have direct evidence of discrimination in the form of “conduct or statements by [decisionmakers] that may be viewed as directly reflecting [an] alleged discriminatory attitude” toward her diabetes. However, the court concluded that her supervisor’s anger toward the employee during her call in was too vague to be direct evidence. Was it the absences, the restaurant opening late, the diabetes, or the failure to call?

Rather, the statements by her supervisors were indirect. Their refusal to assist the employee with meal breaks or a place to store her insulin was not direct evidence of disability discrimination.

First, the remarks may directly show indifference, but not a discriminatory attitude. Second, no reasonable jury could find that the statements were direct evidence of disability discrimination because she could not explain why, if the employer really did act because of her disability, it waited so long to fire her.

Pretext. Ultimately, the employee’s discrimination claim came down to pretext. To survive summary judgment, the employee’s evidence must create a genuine dispute on the ultimate question, which is whether “discrimination was the real reason” for her firing. That is, was the attendance policy just an excuse for the decision to fire her. However, neither her supervisor’s anger nor the decision to fire her occurred while she was still recovering from her diabetic episode. Nor did the alleged hostility of her supervisors created a genuine issue of material fact on pretext. Her violations of the attendance policy posed a problem before her firing, and so “undercuts the significance of the temporal proximity” and provides “an explanation... other than” discrimination.

Accordingly, the appeals court reversed the judgment of the district court on the FMLA interference claim, but otherwise affirmed the lower court.

Concurring in part and dissenting in part. Judge Erickson concurred with the court’s conclusion that a jury must decide whether the employer denied the employee a benefit under the FMLA but disagreed with its conclusion that the employee’s retaliation and discrimination claims could not survive summary judgment. In dissenting, Erickson argued that the employee’s evidence demonstrated that a question of fact exists on the issue of whether the employer’s stated reason for her termination was pretext for disability discrimination.

As to the employee’s FMLA retaliation claim, Erickson argued that the court reworked the timeline to favor the employer. A reasonable jury, he argued, could conclude her supervisor’s understanding of her medical needs more likely motivated her to terminate the employee than her preexisting knowledge of the employee’s attendance policy violations. The same applied to her discrimination claims.

The case is No. 23-1087.

Judge: Stras, D.

Attorneys: Alexis S. Mullaney (Fiedler Law Firm) for Tonya C. Huber. Bonnie M. Boryca (Erickson & Sederstrom) for Westar Foods, Inc.

Companies: Westar Foods, Inc.

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