Lack of Communication Sinks FMLA Claims

By Jennifer L. Gokenbach March 19, 2018

An employer has no obligation under the Family and Medical Leave Act (FMLA) to restore an employee to the same or equivalent position if the employee fails to return from leave or continues leave without communicating his or her return-to-work date, according to the U.S. District Court for the District of South Carolina.

Publix Super Markets Inc. employed the plaintiff for 13 years, from November 2002 until November 2015, initially as a full-time grocery clerk and eventually as a full-time grocery manager.

In 2011, the plaintiff took FMLA leave when he had cancer. According to the plaintiff, the procedure to return to work after FMLA leave was for him to call Publix, and it would put him back on the schedule, which is what happened later that year.

In July 2015, the plaintiff provided doctor's notes to Publix and requested another FMLA leave through Aug. 1, 2015, for chest pains. Upon the conclusion of this FMLA leave, the plaintiff called Publix for his work schedule, and he returned to work on Aug. 2, 2015.

Over the weekend of Aug. 8-9, 2015, he fell from a ladder and injured his back. The plaintiff said he was in serious pain and had limited physical capabilities. He provided a series of doctor's notes to Publix requesting medical leave from Aug. 11, 2015, through Nov. 1, 2015.

Throughout this leave of absence, Publix sent six certified letters to the plaintiff's home address to notify him of the amount of time he had remaining for FMLA leave. As of Nov. 1, 2015, the plaintiff's 12 weeks of FMLA-protected leave were exhausted.

In mid-November 2015, approximately two weeks after the expiration of his FMLA leave, the plaintiff called Publix and spoke to an employee in customer service to find out "the problem" with his schedule. The plaintiff alleges that the employee attempted to transfer his call to the store manager, but the call was not answered.

The plaintiff claimed that he waited two weeks after his leave expired to make the call because he "physically wasn't 100 percent, and he was waiting for Publix" to put him back on the schedule, which he could check from home. The plaintiff did not attempt to visit his Publix store at any time after Nov. 1, 2015; send any written communications to Publix; or meet the store manager in person.

On Nov. 30, 2015, Publix sent the plaintiff a certified letter stating that it had not heard from him or received any further documentation from him since his last doctor's note requesting leave through Nov. 1, 2015, and asking him if he was planning on returning to Publix. The plaintiff claimed that he did not receive the letter and that the signature on the certified-mail receipt was not his. However, the letter was sent to the same home address where prior leave communications had been received.

In early January 2016, the plaintiff called the assistant store manager. The plaintiff claimed the assistant store manager advised him that he, the plaintiff, was on "corporate leave until February the something." The assistant store manager claimed that the plaintiff called and asked why he was still listed on Publix's payroll, to which he responded that the plaintiff had been placed on disability leave to cover his continued absences.

Publix's leave of absence policy requires an employee to maintain contact with his or her manager while out on leave to ensure both the employee and the manager are aware of the employee's expected return-to-work date.

On Feb. 4, 2016, Publix terminated the plaintiff's employment, deeming it a voluntary resignation. The plaintiff sued Publix, claiming that Publix interfered with his FMLA rights and retaliated against him.

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

The trial court ruled in favor of Publix and dismissed the plaintiff's claims on summary judgment. Although the plaintiff exhausted his FMLA leave on Nov. 1, 2015, the fact that he did not attempt to contact Publix until mid-November 2015 and did not actually communicate with store management until January 2016, at which time the plaintiff still did not discuss or ask about returning to work, was fatal to his claims.

An employee must follow company policy and communicate with his or her employer about the return-to-work date, the court held. Since the plaintiff did not comply with Publix's leave-of-absence policy, Publix had no obligation to reinstate him after his leave to his original position.

In addition, the plaintiff failed to meet his burden of showing that Publix's legitimate, nondiscriminatory reason for terminating him—that he failed to comply with Publix's reporting requirements and failed to return to work upon the expiration of his FMLA leave—was a pretext for retaliation. The court found that none of Publix's actions were evidence of discriminatory employer intent.

Blackwell v. Publix Super Markets Inc., D. S.C., No. 6:16-2992 (Feb. 20, 2018).

Professional Pointer: Employers have many obligations under the FMLA, including advising employees of FMLA rights, not interfering with the exercise of those rights and restoring employees to the same or equivalent position upon the conclusion of FMLA leave. Employers may have written policies that require employees to maintain consistent communication while on approved leaves of absence, including providing adequate notice of an employee's return-to-work date.

Jennifer L. Gokenbach is an attorney with Gokenbach Law, LLC, the Worklaw® Network member firm in Denver.


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