Pension & Benefits News Employee terminated after requesting time off to tend to asthmatic son could proceed with FMLA claims
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Friday, August 30, 2019

Employee terminated after requesting time off to tend to asthmatic son could proceed with FMLA claims

By Pension and Benefits Editorial Staff

A casino worker who was fired after she both requested time off to care for her, son who was suffering from an asthmatic episode, and made an inappropriate Facebook post about taking time off, could proceed with her FMLA interference and retaliation claims, ruled a federal district court in Maryland. The court denied the casino’s summary judgment motion, finding it disputed whether the employee gave adequate notice of her intent to take FMLA leave, and whether the casino fired her for taking time off or for other reasons.

Intermittent FMLA leave. The employee worked for a casino. In December 2015, she applied for intermittent FMLA leave to attend to her asthmatic son. She was approved for intermittent leave until the following January. According to the casino’s policy, she applied for and took leave through a centralized service center, not through her supervisors.

May 2017 leave request. When her FMLA leave expired in January 2017, she did not apply for renewed leave. In late April, she emailed one of her supervisors to request time off May 19-22, describing it as "very important." Her supervisor gave her only two of the requested days, marking it as "personal time off" on company schedules. She later gave conflicting reasons for requesting the time off.

When her sister later asked her to go away with her for the weekend, she agreed to go during the two May days she was given off. However, when her son had an asthma episode on May 18, the employee attempted to find a substitute for May 18 and 19 so she could stay home with her son.

She was unsuccessful, but in a subsequent call with one of her supervisors, the supervisor agreed to also give her off May 20 to attend to her son. When the employee said she planned to use the call-in line to officially request the time off, the supervisor told her it was not appropriate, and the employee acquiesced. Nor did she request any of the time off specifically as FMLA leave.

Facebook post. About an hour after that conversation, the supervisor was shown a belligerently worded Facebook post allegedly made by the employee stating that she planned to call in to take the following day off. The supervisor later testified she did not know the employee’s son had asthma, or that the employee had been previously approved for FMLA leave.

On May 19, the employee took her son to the doctor, who directed the employee to stay home to monitor him, and gave her a note to take off work May 19 and 20. On May 20, the employee traveled to see her sister, leaving her son at home, and then took off May 21-22 as previously scheduled.

Termination. When she returned to work, despite her doctor’s note, her supervisors suspended her, pending an investigation into her Facebook post and improper plan to use the centralized call line. The casino terminated her a few days later, ostensibly for her inappropriate Facebook post and planned misuse of the centralized call line, and not because of her unexcused absences on May 19 and 20.

The employee sued, alleging she was terminated in violation of the FMLA and Maryland Fair Employment Practices Act. The casino moved for summary judgment.

FMLA interference. The court denied summary judgment on the employee’s FMLA interference claim, finding it disputed whether the employee gave the casino adequate notice of her intent to take FMLA on May 19 when she took her son to the doctor, and whether the casino interfered with her FMLA rights by considering her FMLA leave as a factor in its termination decision.

Although the employee never renewed her previous approval of intermittent FMLA leave, she contended that she was not requesting intermittent FMLA leave, but rather leave for an unforeseeable need as she could not foresee the timing of her son’s asthma episode. The court rejected the casino’s argument that the employee did not specifically request FMLA from her supervisors. Although the employee did not state that she required FMLA leave, the FMLA did not mandate that she do so. The employee needed only to state a qualifying reason for the leave, and she told her supervisor she needed the time off to take her son to the doctor for an asthma episode, which was a qualifying reason under the FMLA.

A reasonable jury also could find that the employee’s absences were a factor in her termination, and so the casino interfered with her FMLA rights. During discovery, the casino stated it terminated the employee partially because she did not come to work on May 19 and 20, but elsewhere stated that her discipline and termination were unrelated to any exercise of FMLA rights.

The employee also contended she told her supervisor that her son was having an asthma episode which would have triggered an FMLA leave request. Although the casino consistently cited to the employee’s intended use of the call line and Facebook post as a disciplinary issue, the evidence suggested her intended use of the call line was secondary to her work absences in the casino’s termination decision.

FMLA retaliation. The court also denied summary judgment on the employee’s FMLA retaliation claim, finding that the casino repeatedly cited the employee’s absences as a reason for terminating her. During discovery, the casino stated it terminated the employee because she "inappropriately missed work after her request to take PTO for a vacation was denied due to scheduling needs" and several similar statements, as well as for an inappropriate Facebook post. That the casino later claimed her absences did not impact her termination potentially showed pretext.

Additionally, the casino’s argument failed that the employee’s supervisors were unaware of her protected activity. Rather, she specifically told them she needed time off to take care of her asthmatic son. Consequently, the casino could not show that there was no causal connection between her protected activity and her termination.

SOURCE: Smith v. Caesars Baltimore Management Company, L.L.C., (D.Md.), No. ELH-17-3014, August 9, 2019.

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