Lots of laws prohibit an employer from firing or taking some other adverse action against an employee based on the employee’s protected conduct, status, or activity. But what happens when you discover an employee’s misconduct only because he or she engaged in protected activity? The U.S. Court of Appeals for the Eleventh Circuit recently answered that question in Schaaf v. SmithKline Beecham Corp. (11th Cir. Apr. 6, 2010). In that case, Ellen Schaaf was a supervisor who had been disciplined by her employer, SKB. While she was on FMLA leave, SKB discovered that she had ignored scores of expense reports and failed to pay several invoices. In addition, subordinates reported that during her leave productivity increased and morale improved. SKB wouldn’t have known this if Schaaf hadn’t gone on leave, but based on what it learned, when Schaaf returned to work, it told her that she could quit or accept a demotion. She accepted the demotion and then sued, alleging both interference with her FMLA rights and retaliation for taking FMLA leave.

The Eleventh Circuit put the focus where it should be — whether SKB gave Schaaf the “quit or be demoted” choice because she took FMLA leave (a protected activity), or whether it did so because of other factors unrelated to her protected activity. The court held that employers may respond to misconduct, even if they learn about solely as a result of an employee’s protected activity, as long as they aren’t motivated by retaliation. The court rejected Schaaf’s interference claim, finding that the mere fact that SKB discovered the additional reasons for discipline only because Schaaf took FMLA leave did not mean that her taking a protected leave was the reason for its action. The court also rejected Schaaf’s retaliation claim, finding that she “did not present any evidence” suggesting that SKB did what it did to retaliate against her for taking leave. Employers should follow the court’s lead when considering discipline against employees who have taken a protected leave or engaged in other protected conduct, and base their decisions on performance rather than the protected activity.