Small Employer's FMLA Policy Did Not Obligate It to Provide Leave

​An employee demoted after taking pregnancy leave could not prove Family and Medical Leave Act (FMLA) violations because her employer was too small for coverage, but she could proceed to trial on other claims, the U.S. District Court for the Southern District of Alabama ruled.

In January 2017, the plaintiff began employment with Wireless Time of Alabama Inc. as a store manager at its Selma, Ala., store. As store manager, the plaintiff received salary and sales commissions and store commissions in the range of $1,000 to $2,000 per month.

Wireless Time's employment handbook at the time provided that an employee may be granted FMLA of up to 12 weeks of leave in any 12-month period, but that extended maternity leaves that are not medically required are considered personal leaves of absence. It stated that an employee may, at the end of FMLA leave, return to her position or an equivalent position.

In August 2018, the plaintiff learned she was having a high-risk pregnancy. In December 2018, she notified her district manager and the human resource manager and requested leave due to having a high-risk pregnancy for which her physician ordered bed rest, and for maternity leave.

In response, Wireless Time told the plaintiff that FMLA was not available to her because the company was under the employee threshold for the FMLA to apply but that she could take an unpaid leave of absence. The district manager told the plaintiff that her job was safe and he would hold her position open for six weeks. The plaintiff told Wireless Time that she would have to take leave because her doctor ordered bed rest for her pregnancy and began unpaid leave.

On March 18, 2019, the plaintiff gave birth to her son. On March 22, 2019, the district manager told the plaintiff that someone would be working in her position for six weeks until she returned from leave. At some point, the plaintiff contacted HR and asked about the process for her to return to work and she was told to obtain a doctor's release with no limitation.

On April 15, 2019, the plaintiff returned to work and was told her position was filled and she would return as a part-time sales expert instead and was asked to train the woman hired to replace her as store manager. As a part-time sales expert, the plaintiff received less pay—an hourly wage instead of a salary—and was no longer eligible for monthly store commissions.

The plaintiff complained to Wireless Time's director via e-mail about being demoted to sales expert. The director replied that they would stick with the current position offered to her and apologized about any miscommunication about her position. The plaintiff remained in the part-time sales position until May 13, 2019, when she resigned.

The plaintiff filed an employment discrimination and retaliation case asserting claims under the Americans with Disabilities Act (ADA), the Pregnancy Discrimination Act (PDA) and Title VII of the Civil Rights Act of 1964, and claims of interference and retaliation under the FMLA. Wireless Time filed a motion for summary judgment on the plaintiff's claims.

The court first considered the FMLA claims. Wireless Time submitted an affidavit from its CFO stating that the FMLA did not apply because the company did not have more than 50 employees in a 75-mile radius during the plaintiff's employment. The plaintiff responded that Wireless Time was equitably estopped from challenging her FMLA protections because it offered FMLA to employees in its handbook and she understood and detrimentally relied on the policy.

The court noted that the 11th U.S. Circuit Court of Appeals had not yet applied the equitable estoppel doctrine to the FMLA. It then found that, even if the doctrine applied, the plaintiff had not shown a material misrepresentation by Wireless Time. Rather, when she asked Wireless Time representatives multiple times if she was entitled to FMLA leave, they told her no. Even the handbook policy did not state that all employees were eligible for FMLA, only that they may be granted FMLA, which did not create automatic employee eligibility.

The court further found that the plaintiff did not show that she had a disability under the ADA and granted summary judgment to Wireless Time on her ADA discrimination claim and FMLA claims. But the court found sufficient evidence supporting her ADA retaliation, PDA and Title VII claims to allow them to proceed to trial.

Jones v. Wireless Time of Alabama LLC, S.D. Ala., No. 2:20-00613 (Feb. 10, 2022).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.