Limitations period starts when absence classified non-FMLA, not when fired years later for too many absences

An employee who was fired after accumulating 12 unauthorized absences over a period of seven years, in violation of her employer’s attendance policy that was based on a system of progressive discipline, could not pursue her untimely FMLA suit, which asserted that three of the absences were protected by the FMLA. In an issue of first impression, the Seventh Circuit ruled that the FMLA’s two-year statute of limitations began to run when the three contested absences were deemed unauthorized, not when she was fired years later as a consequence of her overall attendance record. Summary judgment was affirmed.

Unauthorized absences. The employee began working for the Illinois Department of Corrections (IDOC) in 1995. At that time, the attendance policy provided that an employee could be discharged after 10 unauthorized absences, but that an employee’s record would be expunged if she went two years without receiving an unauthorized absence. The employee’s first unauthorized absence occurred on December 15, 2003. Although she claimed the absence was FMLA protected and went before the employee review board to challenge this absence, she was found “guilty” of an unauthorized absence and verbally reprimanded.

She had three more unauthorized absences that she did not contest before her fifth unexcused absence on December 22, 2004, when she was purportedly caring for her hospitalized daughter. The review board again found her “guilty” of an unauthorized absence and she received a three-day “paper suspension” (she still reported for work and suffered no lost wages). Her sixth unauthorized absence was on August 10, 2005, when she left work for physical therapy. The review board again found her “guilty” and she received a five-day paper suspension.

Fired after 12 absences. The employee had two more unauthorized absences that she did not challenge. Then, in September 2008, IDOC and the union adopted a more lenient attendance policy under which employees would be subject to termination after accumulating 12 unauthorized absences. After four more unauthorized absences, the employee and was fired on October 15, 2010. She sought review before the Illinois Civil Service Commission but did not raise the FMLA. The Commission adopted the administrative law judge’s recommendation that her discharge be sustained. She then filed suit, which the court held was barred by the FMLA’s two-year statute of limitations.

“Last event.” Resolving this appeal required the Seventh Circuit to interpret and apply the FMLA’s statute of limitations in the context of an absenteeism policy based on a system of progressive discipline, which was a question of first impression. Looking first to the statutory text, the court noted that the FMLA provided that the employee’s action could be brought “not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.” Thus, at issue was what “last event” constituted the alleged FMLA violation.

Here, the employee alleged that IDOC improperly denied her FMLA leave in December 2003, December 2004 and August 2005. On each of those occasions, she notified her supervisor of her impending absence, was absent without authorization, and later went before the review board to challenge IDOC’s decision to treat the absence as unexcused. Each time the board rejected her request for leave, recorded the absence as unauthorized, and imposed some form of discipline. She asserted that by classifying these absences as unauthorized, IDOC violated the FMLA by denying her leave guaranteed by the Act.

Each Board ruling was “last event.” Each time the Board ruled against her, an actionable FMLA claim accrued and the limitations clock started to run, ruled the Seventh Circuit. With each ruling her FMLA rights were impaired and she suffered harm by the classification of her absence as unauthorized, which increased the number of unexcused absences on her record. It was immaterial that the denial of leave came in the form of a retrospective hearing rather than a rejection of a prospective request for leave. In both scenarios the denial of her request for leave was the “last event constituting the alleged violation” on which the action was based. Therefore, the two-year limitations period began to run at the conclusion of hearings held in January 2004, January 2005 and September 2005. Her suit—filed in January 2012—was several years too late.

Title VII analogy off-point. The Seventh Circuit was “skeptical” as to the district court’s analogy between the FMLA and Title VII. The FMLA is fundamentally prescriptive (according a benefit to employees) while Title VII is fundamentally proscriptive (prohibiting discrimination). This distinction was evident in the different language of the two statutory schemes as a Title VII claim requires some materially adverse employment action while an FMLA claim requires an employee to show only some impairment of his rights and resulting prejudice.

Discrete acts. But even if the analogy to Title VII were appropriate, the employee still could not prevail because she alleged that she was wrongly denied FMLA on specific occasions. These were “discrete acts”—independently actionable violations of the FMLA—and each one triggered its own limitations clock. Because her claim was not analogous to a HWE claim, the “continuing violation” doctrine could not apply.

The court rejected her assertion that although she could have filed suit when she was denied leave, she wasn’t required to do so until several years later, when she was fired for accumulating too many unauthorized absences. First, it was unreasonable to assume that there could be more than one “last event” under the statute. Moreover, she was actually proposing a tolling rule that would hold the limitations period “in abeyance indefinitely” and revive a stale denial-of-leave claim years later, when an employee is fired based in part on the contested absence. Such an open-ended tolling rule was entirely unsupported.

“Intentional detour.” Finally, the appeals court was unpersuaded by the employee’s assertion that its ruling left the FMLA “toothless” in a workplace that operates under a no-fault absenteeism policy and a system of progressive discipline. In short, she argued that it would be impractical to sue each time leave is wrongly denied, especially when the immediate consequence is nothing more than a reprimand or paper suspension and another unauthorized absence logged on the employee’s absenteeism record. Although that might be so, the FMLA contains both judicial and administrative remedies in its enforcement edifice, allowing the DOL’s Wage and Hour Division to investigate complaints, attempt to satisfactorily resolve violations and bring court action to compel compliance. This bifurcated enforcement structure suggested that Congress was aware that private litigation may not always be the most practical or desirable means of vindicating rights under the FMLA. Thus, what she portrayed as a “roadblock” to litigating her claim was instead an “intentional detour” away from federal court and toward a federal agency.

SOURCE: Barrett v. Illinois Department of Corrections, (CA-7), No. 13-2833, October 20, 2015.

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