Change in enforcing FMLA notice procedures, timing of termination, suggested FMLA retaliation

An employee who was fired after she didn’t follow her employer’s FMLA leave request procedures for two absences had her FMLA interference claim tossed on summary judgment, but suspicious timing and the fact that the employer had previously excused her failure and retroactively approved absences as FMLA leave, raised a triable issue on her FMLA retaliation claim, a federal district court in Wisconsin ruled. Her ADA failure-to-accommodate claim failed because she could not show that her identified accommodations were reasonable, since the employer’s existing policies did not impede her enjoyment of the same benefits and privileges as her coworkers.

FMLA leave policy. The employee worked at a manufacturing facility covered under the FMLA. The employer maintained a point system for employee attendance issues, with progressively more severe discipline as points accumulated. Under the policy, employees were required to give minimum advance notice to the employer and third-party FMLA administrator for foreseeable FMLA leave, and same or next day notice for unforeseeable leave. The FMLA administrator ultimately determined entitlement for FMLA leave.

Employee’s leaves. In early 2013, the employee was diagnosed with Lyme disease and was approved for intermittent FMLA leave several times a month. She did not always provide the required timely notice, and the administrator retroactively approved her FMLA leave several times. The employer at first did not assess points, but became stricter in the summer of 2013, after the employee had a spate of absences. The employer assesessed points several times when she left early without approval or didn’t timely notify the administrator of her FMLA leave.

Termination. The employee then took approved FMLA leave in January 2014. Three days later, her employer notified her that three previous absences were unapproved because she had not notified the administrator. After taking additional approved FMLA leave later that month, her employer told her she had accumulated enough points to warrant termination, and suspended her pending investigation. Even though the administrator subsequently approved four of her absences, she was terminated.

No FMLA interference where didn’t follow leave procedures. Granting summary judgment against the FMLA interference claim, the court found that the employee did not follow the employer’s internal procedural requirements for requesting FMLA leave. She agreed that she had to timely notify both the employer and its administrator when requesting FMLA leave and admitted not following the procedure for two absences. The court relied on a long line of Seventh Circuit decisions holding that requiring compliance with internal policies that are stricter than FMLA requirements did not constitute interference with FMLA rights, and found both a potentially contrary federal regulation and DOL opinion letter unpersuasive.

FMLA retaliation claim. However, summary judgment was denied on the FMLA retaliation claim based on evidence of several suspiciously timed events relating to the employee’s leave and termination, which suggested retaliatory intent. The employee exceeded her maximum allowable points in December 2013, which entitled the employer to terminate her under its attendance policy. Nevertheless, the employee allowed her to continue working for another month without giving any warning about her attendance. Only after she took approved FMLA leave in January 2014 did the employer notify her that two previous absences had not been approved as FMLA leave. After she again took FMLA leave, she was fired.

Moreover, the employer refused to reclassify the absences as FMLA leave, even though the administrator had retroactively approved them, and the human resources manager could not recall any other instance in the previous six years when leave was denied against the administrator’s decision.

Failure to accommodate claim. The court granted summary judgment on the employee’s failure to accommodate claim, finding the employee failed to adduce evidence that either of the two accommodations she identified would have been reasonable, because she did not show that the employer’s existing policies imposed any impediment to her enjoyment of the same benefits and privileges enjoyed by her coworkers. She was able to take intermittent leave simply by following the employer’s procedures, and did not allege she could not follow them because of her disability. Rather, she did sometimes follow them and received approved FMLA leave. The court also granted summary judgment on the employee’s claim for punitive damages, as she offered no argument that she was entitled to punitive damages.

SOURCE: McKenzie v. Seneca Foods Corp., (W.D. Wis.), No. 16-cv-49-jdp, March 27, 2017.

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