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No FMLA Violation When Employee Fired for Attendance Violation After Earlier Warnings

In Lovland v. Employers Mut. Cas. Co., 2012 U.S. App. LEXIS 5503 (8th Cir. March 16, 2012), the Eighth Circuit held that an employee who was fired for her failure to call her supervisor regarding an unscheduled two-day absence, after having been previously warned about excessive absenteeism, had no FMLA claim under either the interference or retaliation theories.   Affirming summary judgment for the employer the appellate court held that the trial court correctly analyzed the claim under the discrimination prong, rather than the interference prong.

This is an important distinction, because most courts recognize that the discrimination prong requires evidence of the employer’s intent, while the interference prong does not.  Relying on Circuit precedent, the court held that when an employee alleges a violation occurring after taking FMLA leave – rather than denial of or interference with anticipated leave – the claim is properly analyzed as one alleging discrimination or retaliation and thereby requiring intent. Hedging its bets, the court here also held that Lovland lacked a triable FMLA claim even if the interference prong did apply because the FMLA is “not a strict liability statute – an employer is not liable for interference if its adverse decision was unrelated to the employer’s use of FMLA leave.”

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