FMLA Claim Not Barred by Failure to Tell Proper Manager About Absence


By Jeffrey Rhodes January 3, 2019

​An employee with a severe diabetic eye disease who was fired for not notifying the designated manager of a related absence had a valid claim that she was denied her rights under the Family and Medical Leave Act (FMLA), the U.S. District Court for the District of Nevada held.

Global Experience Specialists (GES) hired the plaintiff as a supervisor for its National Service Center (NSC) in 2012. The director of the NSC hired and supervised the plaintiff. At some point, the plaintiff started receiving treatment for eye problems associated with her diabetes. In March 2014, she was diagnosed with a severe diabetic eye disease.

At times, the plaintiff's eye condition would flare up and cause her eyes to start bleeding. Due to the possibility of flare-ups, which would affect her ability to work, the plaintiff requested intermittent FMLA leave, which the company approved in May 2014.

On Sept. 10, 2014, the plaintiff took time off because her eyes unexpectedly started to bleed. The NSC director was not at work and had directed employees that if they needed to take time off they should contact her second-in-command, the NSC manager. Instead, that morning the plaintiff notified another supervisor who then told the director. The director fired the plaintiff, at least in part because she did not directly notify the manager of her absence.

[SHRM members-only toolkit: Managing Family and Medical Leave]

The plaintiff filed a lawsuit asserting that the company violated the FMLA. The parties did not dispute that the plaintiff's absence from work during the flare-up of her eye condition on Sept. 10, 2014, was FMLA-protected leave. Rather, GES claimed that it fired the plaintiff for her absence that day because she failed to follow proper procedures in reporting her absence from work. The company's absenteeism and tardiness policy stated that an employee's failure to notify her immediate supervisor may result in immediate termination.

The plaintiff argued that GES did not enforce the attendance policy against supervisors. A co-worker acknowledged that there were various schedule options for the managing team and that the policy for supervisors regarding attendance was just to communicate with the team when absent. The NSC manager acknowledged that supervisors did not punch a time clock and generally worked on the honor system.

GES argued that the plaintiff's failure to contact the manager was insubordination and that the plaintiff had other performance-related issues at that time. The court, however, found that it could not separate the failure to follow the notification requirement from the plaintiff's need to take medical leave that day. Rather, the notification requirement could be a pretext for limiting the plaintiff's FMLA rights. Thus, the court denied the company's motion for summary judgment because the plaintiff asserted an FMLA claim that would have to be decided by a jury.

Hutchinson v. Global Experience Specialists, Inc., D. Nev., No. 2:16-cv-02397-MMD-GWF (Dec. 3, 2018).

Professional Pointer: Employers can generally enforce attendance policies that employees must notify a specific manager of a medical absence. Nevertheless, failure to consistently enforce such a policy will prevent employers from using a violation as a defense to a potential FMLA claim.  

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

[Visit SHRM's resource page on the Family and Medical Leave Act.]


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