Pension & Benefits News No FMLA violation for denying employee more than 12-week allotment, firing her after failure to return to work
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Thursday, March 12, 2020

No FMLA violation for denying employee more than 12-week allotment, firing her after failure to return to work

By Pension and Benefits Editorial Staff

An employee who sought intermittent and then continuous FMLA leave for the same medical condition, and was terminated after she failed to return to work or exercise other options made available to her after she exhausted her 12-week allotment of leave, failed to defeat summary judgment on her FMLA interference and retaliation claims. A federal court in Delaware rejected her contention that she was denied proper notice of the change in her leave after she sought block leave since she received proper notice when she was granted intermittent leave for the same qualifying reason. She also failed to show that her leave was miscalculated or that the proffered reason for her termination was pretextual.

FMLA leave for work-related stress. The employee worked for a state department of health and social services and had been regularly approved for intermittent FMLA leave to care for her child since 2007. In June 2012, she was approved for intermittent FMLA leave for her own medical condition—work-related stress. A few months later, on October 2, she applied for block FMLA leave for the same medical condition beginning on September 4 and was granted continuous FMLA leave through December 5 "until available FMLA hours have been used" as well as continued intermittent leave. She was also approved for short-term disability (STD) leave through the state agency’s benefits provider through November 13.

Notified of FMLA exhaustion. On December 4, the employee provided a doctor’s note continuing to excuse her from work. On December 13, her employer notified her that because she had been continuously absent from work since September 4, her absence would no longer be covered by FMLA after November 7, and that her STD benefits claim continued to remain in a terminated status. She was further advised that her absence as of November 14 was "considered unauthorized" and that if she was unable to return to work by December 28, she had the option of obtaining approval for additional STD leave from the benefits provider; obtaining written approval for unpaid leave from the employer; or resigning. On December 13, the benefits provider confirmed that her STD benefits terminated as of November 13.

Denied request for recertification. On December 21, she submitted a recertification for FMLA leave requesting from December 6 to March 7, 2013. On December 24, the request was denied because she had exhausted her FMLA leave entitlement for the applicable 12-month period. She complained to HR, who responded by advising her that because she had used up her FMLA leave and her STD benefits had been terminated, she was required to return to work on December 28. She failed to do so, and also did not exercise any of the offered options.

In January 2013, the agency’s director advised her that he was proposing her dismissal because she had not returned to work following expiration of her FMLA and STD leave and failed to follow supervisory directives. She was provided a pre-termination hearing and ultimately terminated in March. She unsuccessfully appealed her termination to the Merit Employee Relations Board and in state court.

Proper notice given. The employee failed to demonstrate that her supervisor interfered with her FMLA rights by failing to comply with the applicable notice requirements. Specifically, she argued that when she was approved for continuous leave in October 2012, she was not notified within five days that there had been a change in her available leave. However, her requests for FMLA continuous leave were based on the same condition for which she sought intermittent FMLA leave in June, at which time she received written notice of her eligibility for FMLA leave. Because an employer is not required to provide an additional FMLA eligibility notice for subsequent absences related to the same qualifying reason, written notification was not required.

Proper method of calculating leave. The court also rejected the employee’s contention that the employer used an incorrect method to determine that she was ineligible for FMLA leave recertification. Though she argued that her FMLA entitlement should have started on October 1—which would have meant she had three to four weeks of available leave when she asked for recertification on December 21—it was undisputed that the employer calculated FMLA leave from the date an employee takes her first FMLA leave. Therefore, her intermittent absence coupled with continual absence beginning September 4 for the "same qualifying reason" resulted in exhaustion of FMLA leave by mid-November. Moreover, even if the intermittent leave approved in June wasn’t counted, she remained continually absent from September 4, 2012, until March 1, 2013—long past the allowable 12 weeks of FMLA leave.

No interference. Accordingly, the employee failed to demonstrate that she was denied FMLA benefits to which she was entitled when she requested recertification in December 2012. She undisputedly exhausted her benefits and had no leave available to her.

No retaliation. She also failed to defeat summary judgment on her claim that she was terminated in retaliation for exercising her FMLA rights. First, she failed to present a prima facie case since she used FMLA leave for years without issue and over two months passed following exhaustion of her FMLA leave and her termination. Moreover, there was no evidence indicating that the proffered reason for her termination—her failure to return to work or avail herself of any of the other options offered to her if she was unable to do so—was pretextual. Indeed, it was not until after she exhausted her 12-week allotment that she was denied FMLA leave and even then, she was provided options to protect her employment, but chose not to avail herself of any of them.

SOURCE: Banner v. Fletcher, (D. Del.), No. 1:14-cv-00691-LPS, February 14, 2020.

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