Employee Could Not Establish FMLA Interference Before She Was Eligible


By Jeffrey Rhodes October 9, 2018

​An employee who was fired when she was a month shy of having 12 months of service with her employer could not bring a Family and Medical Leave Act (FMLA) claim for interference with her request for two weeks of medical leave, the U.S. District Court for the Northern District of Illinois ruled.

The employee worked as a diversity officer for the Metropolitan Water Reclamation District of Greater Chicago (MWRD). During her brief employment, a co-worker carrying an oversized display case struck the plaintiff in the chest with the case, causing her to suffer serious chest contusions. Several days after her injury, the plaintiff went to the emergency room and then returned to work. She began the process of filing for workers' compensation with her employer.

A week later, the plaintiff experienced sharp pain in her left arm and on the left side of her chest and scheduled an emergency doctor's appointment. The doctor opined that the plaintiff needed to take time off work completely to recover from the injury. The doctor issued a patient status report in which he indicated that the plaintiff was to remain off work but did not specify when she could return to work. Instead, the report scheduled a follow-up appointment for two weeks later.

The plaintiff returned to work that evening and e-mailed a copy of the patient status report to HR and her immediate supervisor. In that e-mail, the plaintiff stated that her doctor was not allowing her to return to work for the next two weeks and asked if she needed to fill out FMLA paperwork. She also left a voice mail with her supervisor stating that her doctor was not letting her return to work.

The plaintiff did not return to work for the next four days, during which time her supervisor prepared and submitted a written memorandum recommending her termination to the executive director of MWRD. The next day, the plaintiff's supervisor called her to inform her that she was being fired for "unsatisfactory progress." The plaintiff received a letter from MWRD dated the same day, which explained that the supervisor had recommended the termination based on the plaintiff's unsatisfactory services during her probationary period. The plaintiff was terminated approximately one month before her one-year anniversary of employment.

She filed a complaint against MWRD in federal court claiming violations of the FMLA and a state law prohibiting discharge in retaliation for filing a workers' compensation claim. MWRD filed a motion to dismiss the complaint for failure to state a claim, which the court granted with leave to amend. Thereafter, the plaintiff amended her complaint twice, and MWRD filed a motion to dismiss each amended complaint.

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

In dismissing the plaintiff's FMLA claims in her first amended complaint, the court held that while a pre-eligibility request for post-eligibility leave is protected under the FMLA, the plaintiff failed to allege that she had made such a request. Specifically, the court found that the plaintiff failed to allege that she had actually requested or put the defendants on notice that she was requesting leave to begin on or after her one-year anniversary of employment, when she would have become eligible to use FMLA leave.

In her second amended complaint, the plaintiff alleged that she was requesting ongoing and open-ended leave that would have continued into her eligibility period. However, the court ruled that nothing about the plaintiff's e-mail to MWRD or her doctor's patient status report indicated that her leave request would be so extended. Rather, the documentation confirmed that the plaintiff was only seeking two weeks off before she was fired.

Because the plaintiff could not plausibly allege that she was seeking FMLA leave for which she was eligible, the court dismissed her FMLA claims. The court further dismissed the plaintiff's state-law retaliation claim so that the plaintiff could refile it in state court.

Jones v. Metropolitan Water Reclamation District of Greater Chicago, N.D. Ill., No. 17 C 5879 (Aug. 9, 2018).

Professional Pointer: Employers can legitimately require employees to qualify for FMLA leave prior to using such leave. However, they must be careful not to deny leave that employees request prior to eligibility that commences once employees become eligible for FMLA protection.

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


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