No FMLA Claim Without Expressed Intention to Take FMLA Leave

​The 3rd U.S. Circuit Court of Appeals found that a plaintiff's claims under the Family and Medical Leave Act (FMLA) could not proceed to trial because he had never expressed an intention to take leave under the act.

The plaintiff began his employment with ConnectOne Bank as senior vice president for commercial lending in March 2016. In this role, the plaintiff was responsible for developing business and achieving certain financial goals associated with business loans, as well as deposits. At the time of his hiring, the plaintiff took part in an orientation in which he received and reviewed a copy of the company's employee handbook containing the company's FMLA policy.

In January 2017, management performed its first performance review with the plaintiff. The company concluded that while the plaintiff's work ethic was strong, both his loan origination and deposit goals were below expectations. For the 2017 calendar year, management provided the plaintiff with new origination and deposit goals.

In early March 2017, management sent the plaintiff an e-mail inquiring about the status of his productivity. Shortly after, in mid-March 2017, the plaintiff's wife sustained a fall, which required surgery. The plaintiff advised management that he would be working from home periodically to assist his wife in her recovery. During this time period, management continued to have concerns regarding the plaintiff's lack of productivity relative to his 2017 loan origination and deposit goals.

During the six-week period in which the plaintiff's wife required care, he did not ask for, nor did he take, available paid time off. He believed requesting paid time off was unnecessary because he continued working toward his financial goals from home.

InDecember 2017, the plaintiff's wife underwent an additional surgery, which also required him to assist with her recovery. As before, the plaintiff represented that he would work from home and other than his previously planned time off for the holidays, he did not take any paid time off. 

At the beginning of 2018, management once again evaluated the plaintiff's performance. While observing that the plaintiff generally met his job requirements, management said his performance did not meet expectations. In May 2018, the company terminated the plaintiff's employment, noting that his business development goals did not "com[e] to fruition" and that ultimately, his performance was not at a level acceptable to management.

Following his termination, the plaintiff filed suit in the U.S. District Court for the District of New Jersey, alleging, among other claims, interference under the FMLA and New Jersey's state law equivalent. The plaintiff's FMLA interference claim was based on two theories—a "denial of benefits" theory and a "failure to advise" theory. To successfully bring a "denial of benefits" interference claim, an employee must show that he gave notice he intended to take leave under the FMLA and that his employer denied the request. In contrast, in asserting a "failure to advise" interference claim, the plaintiff must show that his employer failed to advise the plaintiff of his rights under the FMLA.

The company filed a motion for summary judgment, and the court dismissed the plaintiff's case in its entirety. The plaintiff appealed the dismissal to the 3rd Circuit.

On appeal, the 3rd Circuit began by addressing the plaintiff's "denial of benefits" interference claim based on his assertion that his communications with management representing his need to work from home following his wife's surgeries were sufficient to trigger his notice obligation under the FMLA.

In response, the court pointed to the FMLA's implementing regulations, which require an employee to "provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipating timing and duration of the leave," and "provide sufficient information for an employer to reasonably determine whether FMLA may apply to [a] leave request."

The court continued its analysis by explaining that "although the leave request need not follow any set formula, leave must be requested or the need for time off must be conveyed in some form." After comparing various prior cases in which an employee's communications were sufficient to trigger the notice obligation, the court concluded that "an employee who says that he intends to work while out of the office has not conveyed to his employer that he is unable to work or that he seeks time off." Thus, the plaintiff's communications were insufficient to convey an intention to take leave. In sum, because the plaintiff did not make the company aware of his need for leave, there was no resulting obligation to provide him with leave under the act.  

With respect to the plaintiff's "failure to advise" interference claim, the plaintiff asserted that the company never provided him with the Eligibility Notice (WH-381), Notice of Rights and Responsibilities Notice (WH-381), and Designation Notice (WH-382) under the act. Noting that because the plaintiff never expressed an intent to take leave under the FMLA, the court reasoned that the company never incurred an obligation to provide him with these individualized notices. The court also noted that the plaintiff had received the company's FMLA policy upon being hired. For these reasons, the court affirmed the dismissal of the plaintiff's FMLA interference claim.  

Conway v. ConnectOne Bank, 3rd Cir., No. 21-1141 (April 6, 2022).

Jonathan E. O'Connell, SHRM-SCP, is a lawyer with Odin, Feldman & Pittleman PC in Reston, Va. Noelle Peragine is a summer associate with the firm and assisted with the preparation of this article.