First Circuit Rules on FMLA Retaliation Rights for Employees Who Are Not FMLA-Eligible

Darrell VanDeusen
Darrell VanDeusen
10/14/2013

The Family and Medical Leave Act (FMLA) grants eligible employees the right to take job protected leave.  An employer that denies an employee such rights may be faced with an FMLA “interference” claim.  The FMLA also precludes employers from discriminating or retaliating against employees for exercising those rights, and employers must defend against such “retaliation” claims as well.

In the typical retaliation case, an employee subject to an adverse employment decision after or while taking FMLA leave will claim that the taking of the leave was the cause of the adverse decision. See, e.g., Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 283-84 (6th Cir. 2012). Or, when an employee takes no leave but is subject to an adverse employment decision after asking to take FMLA leave, the employee will claim that the request was the cause of the adverse decision. See, e.g., Mickelson v. New York Life Ins. Co., 460 F.3d 1304 (10th Cir. 2006).

In McArdle v. Town of Dracut/Dracut Pub. Sch., (1st Cir. October 9, 2013), however, the claim was more unusual.  McArdle was a school teacher who faced a series of personal life challenges with which he did not deal with successfully, and resulted in excessive absences from work.  In a twelve month period, McArdle came to work on only 82 days, so he worked far fewer than the required “1250 hours worked” in a twelve month period for FMLA eligibility.  He resigned rather than face termination, but the sued claiming the school system violated the FMLA under both the interference and retaliation prongs.

The district court granted summary judgment for the school district.  The First Circuit affirmed, but paused when considering McArdle’s retaliation claim, which suggested that McArdle was fired — not for taking the unsanctioned leave that he took — but because he asked for FMLA leave. Put otherwise, he claimed that he was fired, not because he was absent, but because he asked whether he had the right to be absent.

“As an initial matter,” said the court, “it is not clear that one not entitled to take FMLA leave ‘avails himself of a protected right’ when requesting to take such leave. The case law is both split and not fully developed regarding such an argument.”  Id. at *17.  Compare Walker v. Elmore Cnty. Bd. of Educ., 379 F.3d 1249, 1253 (11th Cir. 2004) (holding eligibility is a prerequisite for a retaliation claim) with Johnson v. Dollar Gen., 880 F. Supp. 2d 967, 991 (N.D. Iowa 2012) (criticizing Walker).  See also Wilkins v. Packerware Corp., 260 F. App’x 98, 102-103 (10th Cir. 2008) (describing the issue as “contestable”).

The court went on to suggest that it was not convinced that an employee who is ineligible for FMLA leave can never bring a retaliation claim.  The FMLA prohibits employer interference with both the exercise of rights provided under the FMLA and “the attempt to exercise any [such] right.” 29 U.S.C. § 2615(a)(1).  But the court said that there is no requirement that the attempt be successful:  “It would seem too, that firing an employee for asking would also frustrate the aims of the Act even if the inquiring employee turns out to be ineligible. Such an ‘ask at your peril’ approach could deter employees, including eligible employees uncertain of the extent of their rights, from taking the first step necessary to exercise their rights.”  Id.   The court left further analysis for another day, holding that there was no evidence on which McArdle could proceed with his claim.

 

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