By Harold S. Berman J.D.
An AT&T employee terminated for excessive unexcused absences could proceed with her FMLA claims because it was disputed whether she had properly requested one of her absences as FMLA leave. AT&T had conflicting FMLA leave request policies.
An AT&T employee could move forward with her FMLA interference and retaliation claims based on her termination for excessive absences, including one absence for which she may have properly requested FMLA leave, a federal district court in Kentucky ruled. The court denied AT&T’s summary judgment motion, finding the company had conflicting FMLA leave request policies, and a jury could find the employee properly requested FMLA leave for which she was later terminated (Archey v. AT&T Mobility Services LLC, March 29, 2019, Bunning, D.).
Unexcused absences. The employee worked as a sales consultant at an AT&T store. AT&T maintained a points system for unexcused absences, with progressive discipline leading to termination for points accumulated within a six-month period. In March 2013, the employee received a counseling notice for accumulating over 4 attendance points, and received a written warning in August after accumulating five points.
Leave requests. By the fall of 2013, the employee was experiencing anxiety and migraines, and so began taking FMLA leave. Although her October leave was approved and was supported with a physician’s note, her supervisor noted in the employee’s employment log that the employee violated the attendance policy by giving notice of her absence 41 minutes after her shift started on October 21. AT&T’s attendance policy required all employees to report absences to their supervisors at least an hour before their start time. AT&T admonished the employee in writing for failing to timely notify management of her absences.
The employee took additional FMLA leave in December, certified by her physician and approved by AT&T. Nevertheless, her supervisor noted in the employee’s log that she missed scheduled shifts due to headaches. In mid-December, AT&T issued the employee a final written warning for accumulating six points for unexcused absences. The employee’s health subsequently worsened, and on the basis of her doctor’s recommendation, she began taking much more frequent FMLA leaves of absence, accumulating 37 days of FMLA leave between January and April 2014.
Termination. According to the employee, she met in early May with her supervisor and the area sales manager, where she was given a counseling notice for unexcused absences and tardiness. She alleged she told the supervisor and manager she was approved for 2-3 days per week of FMLA leave, and that the manager was angry about the extent of her FMLA coverage. She was fired three days later, and her termination notice stated she had accrued enough points for termination, and over 3 points more than stated in the counseling notice. She asserted that at least one of the absences accrued in late March should have been properly excused as FMLA leave.
Although the manager claimed the meeting never took place, and the counseling notice never was delivered, the employee and AT&T agreed that the late March absence was the deciding factor in terminating her because it brought her over the minimum number of points required for termination. Although AT&T provided written FMLA leave and attendance policies available to employees, it also distributed an FMLA handbook that required a different procedure and timeframe to request FMLA leave.
In April 2017, almost three years after she was terminated, the employee sued AT&T and the area sales manager, claiming FMLA interference and retaliation. AT&T and the manager moved for summary judgment.
FMLA interference. The court denied summary judgment on the employee’s FMLA interference claim. Although AT&T claimed she failed to follow its FMLA leave policies in applying for late March leave by not calling a centralized third-party number to request leave, the employee did follow a contrary leave request policy contained in AT&T’s FMLA handbook which instead instructed her to contact her supervisor. Consequently, there was conflicting evidence concerning what constituted AT&T’s customary policy for requesting FMLA leave, and whether the employee properly requested leave.
Although AT&T claimed it legitimately fired the employee for unexcused absences, those absences included the disputed late March absence. The employee also offered sufficient evidence to show AT&T’s proffered reason for firing her for excessive absences was pretextual. A reasonable jury could find the employee properly notified AT&T regarding her late March absences, and so should not have accumulated sufficient points for termination.
AT&T’s argument failed that it had an honest belief the employee had accumulated sufficient points for termination because the same unexcused absence used for termination after her supervisors became aware of the extent of her approved FMLA leave was omitted from the counseling notice. The absences for which points were added to the employee’s record after the counseling notice all predated the counseling notice.
FMLA retaliation. The court also refused to dismiss the employee’s FMLA retaliation claim. The employee sufficiently showed a causal connection between her FMLA leave and her termination. The employee testified she was terminated three days after telling the area manager she was eligible for up to three days a week of FMLA leave, and she took extensive leave in the four months before her termination. Although AT&T maintained it did not terminate the employee for engaging in statutorily protected activity because her late March absence was unexcused and not considered FMLA leave, the employee had made out a prima facie case that AT&T’s characterization of her late March absence as unexcused interfered with her statutory right. A reasonable jury could find her absence was FMLA-protected because she gave proper notice under AT&T policy.
Statute of limitations. Further, the court rejected AT&T’s argument that the employee’s FMLA claims were time-barred. The employee filed suit more than two but less than three years after she was terminated. She could claim the three year statute of limitations for willful FMLA violations rather than the standard two year limitations period because if a jury found she gave adequate notice of her leave request, it could also find AT&T was on notice of her need for FMLA leave, and so acted recklessly or knowingly in terminating her based in part on her late March absence. A jury also could conclude that the area manager terminated the employee based in part on her May 2 statement that she was entitled to additional FMLA leave.
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