3-10-2011; FMLA applicants can’t “disappear” after initially seeking leave and you may be able to terminate and make it stick if they do

In this ruling, the Seventh Circuit Court of Appeals found the District Court did not err in granting Defendant-employer's motion for summary judgment in FMLA suit alleging Defendant interfered with Plaintiff's FMLA rights when it terminated him nine days after he had informed management he required “a couple of days off” to take care of his ailing mother. Our disagreement with this decision is not the result reached, but the somewhat strained logic the Court employed to find Plaintiff issued a valid election of FMLA benefits despite a clear intent not to elect such benefits. The trouble this decision portends is an apparent requirement employers read the minds of their employees as outlined at the end of the analysis below. 


In Righi v. SMC Corporation of America, (No. 09-1775, February 14, 2011) Plaintiff was a sales rep for Defendant; he regularly worked from home but was required to perform mandatory training at a designated Indianapolis location. During a mandatory two-week training seminar scheduled from July 9-21, 2006, Plaintiff received a call July 11, 2006 informing his mother was extremely ill and he left to be with her near his Illinois home. Upon his arrival his mother’s condition had stabilized, and the following day he emailed a co-worker in charge of scheduling the training sessions to inform he would need to reschedule his training. He also emailed his supervisor July 12, 2006 to inform the supervisor of the reason for his departure from training. In that email Plaintiff specified he had vacation time available and did not wish to take FMLA leave “at this time” but was requesting a leave of absence. Upon receipt of the email and over the following four days Plaintiff’s supervisor made no less than 15 attempts to reach Plaintiff for an explanation of the type and duration of Plaintiff’s anticipated leave, leaving messages on his work-provided cell phone, at his home and by personal conversation with Plaintiff’s roommate by calling the roommate’s cell phone. Plaintiff effectively “disappeared.” Plaintiff made no contact with his supervisor until July 19, 2006, at which time his supervisor informed him he needed to be present for a meeting the next day. He was then terminated July 20, 2006 for violating Defendant’s leave policy.


Plaintiff filed suit alleging an FMLA violation in his termination. The District Court entered summary judgment in favor of Defendant on two separate grounds: 1) Plaintiff waived FMLA protections when he instructed his supervisor he did not wish to utilize his FMLA leave for his absenteeism, and 2) even if Plaintiff did exercise his FMLA rights, he failed to follow the requirement of FMLA protections by refusing to notify Defendant of his anticipated return to work date as required by Defendant’s policy and FMLA regulations. 


In affirming the District Court, the U.S. Court of Appeal, Seventh Circuit, supported its decision on only the second ground for termination: Plaintiff’s failure to inform Defendant of his anticipated return to work date and his ignoring of his supervisor’s repeated requests for information. In its analysis, the Court noted to prevail on a claim of FMLA interference Plaintiff must prove:


1.     Eligibility for FMLA protection;                                                                                                                   

2.     His employer was covered by FMLA

3.     He was entitled to FMLA leave,

4.     He provided sufficient notice of his intent to take FMLA leave and

5.     His employer denied him FLMA benefits of which he was entitled.


The Federal Appellate Court rightly noted elements 1-3 were not disputed and the parties agreed Plaintiff met those requirements. Turning to number 4, the Court noted where an employee fails to give sufficient notice of intent to take FMLA leave, the employer was under no obligation to provide FMLA leave, and an employee’s failure to comply with the notice requirements stripped the employee of FMLA protections and foreclosed a claim for FMLA interference because the employer’s obligation does not vest. See Stevens v Hyre Electric, 505 F.3d 720 and Ridings v Riverside Med. Ctr, 537 F.3d 755.


Supported by what we feel is strained reasoning, the Court found Plaintiff’s email left some room (emphasis in the original) for him to change his mind and elect FMLA leave protections. Never mind Plaintiff explicitly stated he was not invoking FMLA protections at the time - never mind Plaintiff never made any subsequent contact to his employer to actually invoke those protections - the Court determined Plaintiff’s email, “read in his favor” left some room for him to change his mind, which he never did, but we digress. In determining Plaintiff’s email provided Defendant with sufficient notice of FMLA intent, the Court noted it does not take much for an employer to be put on notice of FMLA intent; one must simply provide enough information to place the employer on notice of a probable basis for FMLA leave and need not explicitly assert rights under FMLA to be afforded its protection. The email did so. Conversely, an employee may also waive the election of FMLA with an expression of clear intent not to invoke FMLA rights.


While the District Court found Plaintiff expressly waived his right to FMLA when he sent the email specifically stating he did not wish to utilize his FMLA leave, the Federal Appellate Court disagreed the email was an explicit waiver of FMLA. Reading it in the light most favorable to Plaintiff, the Court (arguably incorrectly, unless you don’t know what “I do not want to… at this time.” means) found Plaintiff’s statement left open the possibility Plaintiff would use FMLA leave and therefore it was not an explicit waiver of FMLA intent. We feel this begs the question what does constitute an explicit waiver of FMLA intent. Once Plaintiff voiced such intent, the burden shifted to Defendant to show affirmative steps taken to process the leave request. On this issue the Court found Plaintiff’s case deficient. In addressing Plaintiff’s failure to inform Defendant of his anticipated return to work date, the Court noted Plaintiff’s disregard for Defendant’s repeated requests for FMLA information. Noting no less than 15 attempts to reach Plaintiff over the course of five days, the Court found Defendant fulfilled its obligation of inquiry as to the basis and duration of the absenteeism: Defendant made every attempt to fulfill its obligation of reasonable inquiry under FMLA tenets in place at the time. Defendant’s attempt to contact Plaintiff were immediate and numerous, and Plaintiff’s failure to respond to those repeated attempts “dooms his FMLA claim.”


This ruling holds FMLA does not permit employees to “keep their employers in the dark about when they will return” from leave; the employer is “entitled to the sort of notice that will inform them not only that the FMLA may apply but also when [he] will return to work.” The Court noted in all cases the employee must provide the employer with enough information to anticipate the timing and duration of the leave. Even in cases where, as here, the need for leave is unforeseeable, the employee still has an obligation to provide the employer with details as to the length of the leave “as soon as practicable,” meaning within one or two working days of learning of the need for leave under FMLA tenets in place at the time. The Court noted Plaintiff informed Defendant he needed “the next couple days off” but then proceeded to remain absent for nine days, ignoring every attempt at contact by Defendant. Plaintiff’s nine day absenteeism included six working days wherein he attempted no contact with Defendant. The Court noted “this is especially so in light of [Defendant’s] persistent efforts to reach [Plaintiff] to clarify his request….” On that basis, the Court affirmed the District Court’s summary judgment dismissal.


What we’re bothered by in this decision is the Court’s refusal to acknowledge Plaintiff’s email, even taken in the light most favorable to him, explicitly states he did not wish to take FMLA at that time. Without him ever having made subsequent contact, the Court presumes Plaintiff gave Defendant sufficient notice that he wished to withdraw an explicit waiver of FMLA rights so that it was then the employer’s obligation to institute FMLA protections. The decision basically contemplates an employer will be required to assume an implicit revocation of an explicit waiver, which we feel is pure nonsense leading to the next logical claimed FMLA violation by an employer: The improper revocation of an explicit waiver of FMLA rights and the forcing upon the worker of an FMLA election explicitly waived.


This article was researched and written by Joseph R. Needham, J.D. Please do not hesitate to contact Joe at jneedham@keefe-law.com with your thougths and comments.