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Here are some of the more significant and potentially useful court decisions interpreting the Family and Medical Leave Act (FMLA) since our last issue of Insight.

Mistaken Reliance On Manager’s Representations Concerning Leave. In Reed v. Lear Corporation, the plaintiff claimed that his employer violated the FMLA by terminating his employment for excessive absences because he had relied on his manager’s representation that he had “provisional” approval for the absences. Reed claimed that, but for his manager’s statement, he would have used vacation days for his final absences. The U.S. Court of Appeals for the Eighth Circuit rejected the claim and held that Reed’s reliance was unreasonable because the FMLA documentation he received from his employer (an FMLA information packet and two letters denying his request for leave) explicitly informed him that he needed to submit a medical certification form attesting to his inability to work — and he admittedly failed to do so.

Similarly, the U.S. Court of Appeals for the Sixth Circuit held in Dobrowski v. Jay Dee Contractors, Inc. that a terminated employee could not rely on his employer’s inaccurate assurances of FMLA eligibility. Dobrowski scheduled an elective surgery to treat his epilepsy, and informed his employer of the surgery. The employer terminated Dobrowski’s employment upon his return from leave because it no longer needed his services. Although Dobrowski had not been eligible for FMLA leave because his employer did not have the requisite number of employees, he argued that his employer should be precluded from denying eligibility because he had filled out the employer’s FMLA paperwork, he had received written notice from his employer stating that he was an “eligible employee,” and his leave had been described as “pursuant to the FMLA.” The court recognized that there may be circumstances where an employer’s statements regarding an employee’s FMLA eligibility can prevent the employer from raising noneligibility as a defense, but it concluded that Dobrowski could not show that he had detrimentally relied on his employer’s misstatement of FMLA eligibility. He had scheduled the surgery before he was misinformed, and he was not able to show that he would have done anything differently.

Daily Call-In Policy Did Not Violate FMLA Rights. In Bacon v. Hennepin County Medical Center, the plaintiff sued her former employer claiming that she had been improperly terminated while on FMLA leave for failing to comply with the employer’s call-in policy. The policy required employees on leave to either provide a tentative date for their return to work or to call in daily to report their absences. After a month of complying, Bacon stopped calling in her absences (claiming her supervisor told her she could stop). The employer processed her termination as a voluntary quit. The U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal of her lawsuit, holding that her termination did not violate the FMLA because the employer had made it clear (through its leave forms and employee handbook) that its call-in policy was effective even when an employee was on FMLA leave. Although the case arose prior to the implementation of the U.S. Department of Labor’s new FMLA regulations, the outcome is consistent with the new regulation that requires employees to follow their employer’s “usual and customary” call-in procedures.

No Magic Words Needed For Intermittent Leave. In Dotson v. Pfizer, the U.S. Court of Appeals for the Fourth Circuit affirmed a judgment that Pfizer must pay more than $600,000 for an FMLA violation resulting from the termination of an employee who took intermittent leave to adopt a child. Dotson claimed that he was improperly terminated shortly after returning from a trip to Russia with his newly adopted child. Pfizer argued that it terminated Dotson because his performance had deteriorated and because he had violated company policy. In appealing the jury verdict in Dotson’s favor, Pfizer asserted that Dotson had not actually asked for FMLA leave, and that his pre-adoption intermittent leaves were taken without the employer’s consent and thus were not FMLA-protected. The appellate court disagreed. It acknowledged that employees cannot take intermittent FMLA leave for adoption purposes unless the employer agrees, but held that Pfizer had effectively agreed when Dotson explained his need for leave and the company did not object or tell him he could not take it. After all, the FMLA does not require an employee to specifically invoke the FMLA’s protections in requesting leave. The court emphasized that it is the employer’s responsibility to determine the FMLA’s applicability and to consider requested leave as FMLA leave.

Employer Improperly Canceled Employee’s Health Insurance After FMLA Leave. In Ryl-Kuchar v. Care Centers, Inc., the employer spent much on unsuccessful litigation to defend a decision that would have saved it very little. Ryl-Kuchar was a full-time salaried employee working a 40 hour week prior to taking FMLA leave for the birth of triplets. A month prior to her leave, she began working less than 35 hours per week. She resigned toward the end of her FMLA leave. A month later, the employer retroactively canceled her group health insurance to a date prior to her delivery. The employer claimed that the decision was made by its benefits administrator when it audited timesheets and concluded Ryl-Kuchar had become ineligible for health insurance when she began working less than 40 hours a week. The benefits administrator was not a separate entity and was simply an arm of the employer. Based on that, plus some testimonial inconsistencies, the close timing, and the employer’s expressed concerns about rising health care costs, a jury rendered a verdict in Ryl-Kuchar’s favor, concluding that the real reason insurance was canceled was because she took FMLA leave and then exercised her right to resign. The U.S. Court of Appeals for the Seventh Circuit affirmed.

Dismissal Reversed In Mixed-Motive FMLA Retaliation Case. In Hunter v. Valley View Schools, the plaintiff was placed on an involuntary oneyear unpaid leave when she returned from an approved FMLA leave with several permanent work restrictions that purportedly rendered her unable to perform her school custodian job. The employer’s stated reason was Hunter’s inability to perform her job plus her prior excessive absences, nearly all of which had been protected under the FMLA. Consequently, the key question in her retailiation lawsuit was whether an employee can proceed with a viable FMLA retaliation claim where the employer’s motives were both illegal (prior FMLA leave-related absences) and legal (present inability to perform essential job functions). The U.S. Court of Appeals for the Sixth Circuit concluded that it was the employer’s burden to establish that it would have made the same employment decision even in the absence of the impermissible motive. The appeals court went on to hold that the employer could not meet that burden, and the trial court’s judgment in the employer’s favor was improper due to substantial evidence of improper motivation.

Employee Who Did Not Report To Work Was Lawfully Terminated. Another case illustrating the factual sensitivity of ascertaining an employer’s motive is Phillips v. Mathews, decided by the U.S. Court of Appeals for the Eighth Circuit. Phillips was supposed to report to work prior to attending a doctor’s appointment for injuries sustained in a car accident. She did not report to work as agreed, though, because her car would not start. She did make it to the doctor’s appointment, nonetheless, who recommended that she take time off for physical therapy. When she next reported to work, her employer terminated her because she had not reported to work prior to her doctor’s appointment. The court concluded that Phillips had provided sufficient notice of her potential need for FMLA leave because (1) she had discussed the possibility that she might need time off for physical therapy, and (2) her supervisor had given her FMLA paperwork to complete before her doctor’s appointment. But her FMLA interference claim nonetheless failed because there was no evidence that her termination was for a reason connected to her leave. Carefully separating the motivational elements, the court concluded that her car problems were not a serious health condition, and that her termination based on her non-report that day, plus two prior reprimands for performancerelated conduct, were all completely unrelated to her doctor’s appointment or her need for FMLA leave.

Union Business May Be Creditable Toward FMLA Eligibility. In Maples v. Illinois Bell Telephone Co., a U.S. District Court in Illinois held that several union stewards could proceed with their FMLA lawsuit challenging the employer’s practice of not crediting time spent on internal union business for purposes of determining FMLA eligibility. The time in question was unpaid by the employer but was paid by the union. The court held that, while this time did not meet applicable statutory and regulatory definitions so as to constitute “hours of service” creditable toward FMLA eligibility, it could nevertheless be creditable toward FMLA eligibility based on the parties’ custom or practice. It was highly significant to the court that, even though the collective bargaining agreement did not address the issue, the employer had credited internal union time toward FMLA eligibility for eight years before deciding to exclude it.

Time Lost During Disputed Layoff Not Counted Toward FMLA Eligibility. In Shaw v. Total Image Specialists, Inc., the employee argued that, if a period of time he missed work during an allegedly improper layoff had been counted, he would have accumulated more than the requisite 1,250 hours to satisfy FMLA eligibility requirements. A U.S. District Court in Ohio acknowledged that the U.S. Court of Appeals for the Sixth Circuit (which covers Ohio as well as Michigan) had held that, under certain circumstances, hours missed due to an unlawful termination could count toward the FMLA’s 1,250-hour statutory eligibility requirement. But it concluded that Shaw’s case did not meet that test because Shaw was not “made whole” by the settlement related to his disputed layoff, and there was no finding of unlawful conduct — only a contract settlement with an agreement containing no admission of liability.

Shannon V. Loverich