Labor & Employment Law Daily Wrap Up, EMPLOYEE LEAVE—D.S.C.: County employee fired same day she requested leave can’t advance FMLA retaliation claim, (Mar 23, 2026)

By Kathleen Kapusta, J.D

The county claimed the administrative assistant was fired for her insubordinate and disrespectful conduct toward an associate probate judge.

Adopting a magistrate’s Report and Recommendation and granting summary judgment to a county employer on an administrative assistant’s FMLA retaliation claim, a federal district court in South Carolina found the employee failed to show the county’s stated reason for firing her on the same day she requested leave for a serious medical condition was pretextual. The court also declined to exercise supplemental jurisdiction over her remaining state-law breach of contract claim (Peay v. Florence County, No. 4:24-cv-01307-JD-TER (D.S.C. Mar. 19, 2026)).

The employee worked as an administrative assistant to the probate judge and, according to her, she served in that role for several years in a satisfactory manner.

Doctor’s note. In December 2023, she purportedly experienced a serious health condition. A December 18 doctor’s note stated that she had been seen in the doctor’s clinic on December 13 and that she could return to work on January 18.

Leave form. The employee completed a county request for leave form, which was also dated December 18, requesting sick leave from December 19 through January 17, 2024. She signed the form but it did not include signatures for “Department Director Approval” or “Human Resources Approval.”

Confrontation. Late in the afternoon on December 18, the employee emailed the probate and associate probate judges, explaining that her doctor had written her out of work until January 18. According to a disciplinary action notice purportedly written by the associate probate judge, the employee brought her paperwork to her office and when the judge asked her about the email, she became argumentative and walked out.

When the judge told her to come back, the employee stated that she had to use the bathroom. Several minutes later, the employee called the judge and told the judge she could not talk to her like a child or point her finger at her. The judge again asked the employee to come back to her office and when the employee returned, she told the judge she had four minutes to talk and was argumentative and disrespectful. According to the judge, the employee left saying the judge had talked down to her and was unethical.

Termination. The associate judge then contacted the probate judge and told him what had happened, and he immediately decided to fire the employee.

R&R. The employee sued for retaliation in violation of the FMLA and the magistrate judge ultimately recommended granting summary judgment against her claim. Objecting, the employee argued that the magistrate’s Report and Recommendation erred in concluding that the county articulated a legitimate, nonretaliatory reason for her termination and that she failed to establish pretext.

Proffered reason. Adopting the Report, the court agreed that the county’s proffered reason for the adverse action—the employee’s insubordination and disrespectful conduct on December 18—was legitimate and nonretaliatory. The court also agreed that the employee failed to establish pretext.

Pretext. Although she pointed to the temporal proximity between her leave request and her termination, that alone was not enough to create a triable fact issue as to pretext. Nor was the court persuaded that the county’s explanation was undermined by the employee’s lack of prior disciplinary history and by the county’s alleged failure to follow progressive discipline policies.

Disagreement “with the severity of an employer’s disciplinary decision, or the manner in which it applies internal policies, does not establish pretext absent evidence that the stated reason is a cover for unlawful retaliation,” said the court, and there was no evidence that similarly situated employees were treated differently or that the county’s reliance on her conduct was not the real reason for her termination.

The employee next argued that the associate judge’s disciplinary action notice was unauthenticated and unsupported by a proper foundation but even assuming she raised a question as to the form of the document, she did not identify any affirmative evidence contradicting the county’s account of what happened or otherwise show its proffered reason was false.

Finally, while the employee pointed to alleged discrepancies involving materials from the South Carolina Department of Employment and Workforce as evidence of pretext, the court found these discrepancies, even if established, did not meaningfully undermine the county’s stated reason for firing the employee.

“Taken together, Plaintiff’s objections fail to identify evidence from which a reasonable jury could conclude that Defendant’s stated reason was false or that retaliation was the but-for cause of her termination,” said the court, overruling the employee’s objections and granting summary judgment to the county.

The case is No. 4:24-cv-01307-JD-TER.

Judge: Dawson, J., III.

Attorneys: Donald Gist (Gist Law Firm) for Brittany Peay. Joan Elizabeth Winters (Joan Elizabeth Winters Law Offices) for Florence County.

Companies: Florence County

Cases: EmployeeLeave Retaliation Discharge SouthCarolinaNews