Labor & Employment Law Update

Many employers hesitate to discipline or terminate for misconduct if the employee has recently engaged in protected activity, such as requesting FMLA, seeking an accommodation, or filing a complaint. Suspicious timing can easily lead to a retaliation claim, so the concern is understandable.

But hesitation has costs too for an organization—no accountability for the misconduct, past practice is now undermined, and the employee is emboldened to commit more policy violations.

Help is on the way. In Shirk v. Trustees of Indiana University (7th Cir. Feb. 12, 2026), the Seventh Circuit confirmed that employers can and should act decisively on documented misconduct, even when timing appears suspicious, and successfully defend against retaliation claims.

The case reminds employers they need not tolerate an employee’s misconduct simply because an employee recently engaged in protected activity, provided the corrective action is based on legitimate, documented business reasons unrelated to the protected activity.

The Facts: Protected Activity, Misconduct, Then Termination

Jennifer Shirk, an online instructional designer at Indiana University, had taken multiple periods of FMLA leave and received accommodations for mental health conditions. In mid-April 2021, roughly two months after the university granted nearly all her accommodation requests, a temporary funding issue arose in her unit. Her supervisor resolved it within 30 minutes. Despite acknowledging the solution was “appropriate,” Shirk sent a series of escalating, insubordinate emails over two days.

Soon after, the university held a due process meeting to discuss her emails. Shirk immediately requested another period of FMLA leave. That same afternoon, her supervisor decided to terminate her. Despite the suspicious timing, the court upheld the termination, emphasizing that it was justified by a documented pattern of Shirk’s insubordinate behavior, including bypassing her chain of command, escalating a resolved issue, accusing supervisors of mismanagement, and continuing to send emails after being directed to stop. The court also noted that embedding a discrimination complaint in her final insubordinate email suggested she was using protected activity as a shield for misconduct.

Best Practices: When Discipline Intersects With Protected Activity

Shirk is a terrific reminder that employers have the right, even in the face of an employee’s protected activity, to lawfully document misconduct and take corrective action. Employers should adopt the following best practices:

1. Document specific policy violations in real time. When problematic conduct occurs, document it immediately with specific examples. Contemporaneous documentation of exactly what the employee did wrong with specific details creates a defensible record.
2. Distinguish between the protected activity and the conduct. Make clear in documentation and decision-making that the discipline addresses the behavior (insubordination, policy violations, performance failures), not the fact that the employee complained or took leave. If the organization can articulate exactly what policy was violated and how, it’s on solid ground (e.g., “Employee used profanity in the presence of several customers in violation of the company’s professionalism standards.”)
3. Don’t delay discipline to create distance. Waiting weeks or months to discipline misconduct that occurred shortly after protected activity doesn’t eliminate retaliation exposure. Statutes of limitation for these claims run for months or years, so delay offers no real protection. It just raises questions about whether the conduct was really serious enough to warrant discipline at all. If the behavior warrants immediate action, take it.

Shirk gives employers clarity to act. Protected activity does not create a free pass for workplace misconduct. When the record reflects that discipline targeted workplace misconduct rather than an employee’s complaint or FMLA request, suspicious timing alone—even if on the same day—will not defeat the lawfulness of the employer’s decision.