Labor & Employment Law Daily Wrap Up, EMPLOYEE LEAVE—D. Ariz.: Bank employee’s documented performance problems defeat FMLA claims, (Jul 17, 2026)

By George Basharis, J.D.

The employer approved every leave request and documented concerns about the employee’s performance and workplace conduct before she sought protected leave.

Western Alliance Bank did not interfere with an employee’s FMLA rights by terminating her shortly after approving intermittent leave, a federal court in Arizona concluded in granting the bank summary judgment. Extensive documentation showed that performance and professionalism concerns preceded her leave request, and she offered no evidence that the request influenced the termination decision. The bank also provided FMLA information once she connected her performance problems to her health and approved every request for time off (Thurston v. Western Alliance Bank, No. CV-23-01097-PHX-DLR (D. Ariz. July 15, 2026)).

Performance concerns. The employee began working for Western Alliance as a senior product manager in December 2019. Her supervisor issued an ad hoc performance review in August 2020 that identified positive aspects of her work but also raised concerns about her product knowledge and interactions with colleagues. The supervisor cited consistent feedback that the employee sometimes became argumentative or confrontational during disagreements.

Impending surgery. The following month, the employee informed her supervisor that she needed surgery in October. The supervisor immediately contacted human resources, which reached out to the employee about FMLA leave, but she was not yet eligible. Nonetheless, Western Alliance approved two weeks of leave for the surgery and recovery, along with additional pre-surgery leave. Afterward, the employee told her supervisor that she was doing well. She became eligible for FMLA benefits in December 2020 but did not identify a continuing condition that required protected leave.

Performance concerns continued. Western Alliance removed the employee from a major project in January 2021 after several colleagues questioned her knowledge of the subject matter. The bank then reclassified her as a product manager because it had removed a significant portion of her responsibilities and needed to hire another employee. The reclassification did not reduce her salary. In March, a meeting between the employee and two colleagues became heated, prompting the supervisor to notify human resources and raise additional concerns about untimely work. Two months later, the employee gave a presentation that the supervisor described as “lackluster” despite having more than a year to prepare.

PIP. Western Alliance placed the employee on a 30-day performance improvement plan (PIP) in May. When she attributed her performance problems to her health during the meeting presenting the plan, HR sent her FMLA information the next day. The bank approved her request for intermittent leave on June 4. On June 17, however, the supervisor reported that the employee laughed at and mocked her during a meeting about required compliance training. The supervisor recommended termination, and Western Alliance ended the employee’s employment the following day.

The employee later sued Western Alliance and her supervisor, asserting FMLA interference and retaliation claims, along with an intentional infliction of emotional distress claim against the bank. Western Alliance and the supervisor sought summary judgment on each claim.

Notice claim. The employee maintained that Western Alliance should have notified her about FMLA leave before the performance improvement meeting because the bank already knew about her health problems. But the evidence did not show that the bank had notice after her October 2020 surgery that she continued to experience a serious health condition requiring leave. Although she occasionally missed a few hours or a day for medical appointments, she did not establish that she connected those absences to a serious illness. Once she linked her performance problems to her health during the May meeting, the bank promptly provided FMLA information.

The claim also failed for lack of prejudice. Western Alliance granted every time-off request, and the employee never missed a medical appointment because the bank denied leave. Nor did she show that she would have structured her leave differently with additional information. Her contention that Western Alliance later criticized her absences did not establish prejudice from a notice violation. Whether the bank considered protected leave when terminating her presented a separate question.

Termination decision. The employee’s retaliation allegations were properly treated as an FMLA interference claim because she asserted that Western Alliance terminated her for requesting leave, not for opposing an unlawful FMLA practice. The claim required evidence that her leave request served as a negative factor in the termination decision, but she produced none. Western Alliance instead supplied extensive documentation of performance and conduct problems dating to August 2020, months before she became FMLA-eligible and nine months before she requested intermittent leave. Those concerns included limited product knowledge, confrontational behavior, poor attention to detail, missed expectations, and an inadequate presentation. They led to reduced responsibilities, reclassification, and the performance improvement plan, while the June meeting incident prompted the termination recommendation.

PIPs issued by the employee’s previous and subsequent employers documented similar concerns involving workplace conflict, attendance and availability, and presentation quality. That evidence further undermined her assertion that Western Alliance’s plan masked an FMLA-related motive. The supervisor also could not face individual FMLA liability because, although she recommended termination, she lacked authority to carry it out without approval from HR and the bank’s COO.

Emotional distress. The employee’s intentional infliction of emotional distress claim also failed. She cited criticism, the PIP, asserted misunderstandings about her attendance, negative feedback, and termination. Even if perceived as insulting or unfair, that conduct did not approach the extreme and outrageous behavior required under Arizona law. The termination alone could not sustain the claim.Top of Form.

The case is No. CV-23-01097-PHX-DLR.

Judge: Rayes, D.

Attorneys: Cheri Quigley (Law Office of Chen C. Quigley) and Kevin Parsi (Titla & Parsi) for Julie Thurston. Andrew B. Levin (Ogletree Deakins) for Western Alliance Bank and Michelle Lance.

Companies: Western Alliance Bank

Cases: EmployeeLeave Discharge TortClaims ArizonaNews