Professional Service Agreement

Employee Fired days After Intermittent Leave Approved Advances FMLA Claims

December 04, 2017

An employee who requested intermittent Family and Medical Leave Act (FMLA) leave so he could take his wife, who had suffered a stroke, to physical therapy, and who was fired just four days after his leave was approved, sufficiently pleaded FMLA interference and retaliation claims.

His claim for compensatory damages for his alleged emotional distress or pain and suffering was dismissed, however, as the FMLA does not authorize recovery of damages for emotional distress.

Twenty-one years after he was hired, the welder requested that he be allowed to use intermittent FMLA leave to provide transportation for his wife’s physical therapy. Although the leave was approved on September 4 through October 23, he was fired on September 8 for being absent without notice. He subsequently sued, alleging his former employer interfered with his substantive rights under the FMLA and retaliated against him for exercising his right to FMLA leave.

Interference. In moving to dismiss the employee’s interference claim, the employer argued that he failed to plead he gave proper notice of his intention to go on leave the day he did. Observing that an employer may require an employee to adhere to its usual and customary procedures for requesting FMLA leave, the court pointed out that discipline resulting from an employee’s failure to do so does not constitute interference with the exercise of FMLA rights unless the employee can show unusual circumstances. The critical question, noted the court, is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee's request to take time off for a serious health condition.

Here, the employee alleged that he requested in late August that he be allowed to take intermittent leave and that the leave was approved on September 4 and effective through October 23. Further, he stated that he complied with all requirements under the FMLA and his employer’s policies, including under the employee handbook’s FMLA provision. Thus, the court found it clear he sufficiently alleged he gave proper notice he would be absent on the day in question and that, accepting his allegations as true, he sufficiently stated a plausible FMLA interference claim.

Retaliation. The employee also successfully pleaded his FMLA retaliation claim, said the court, noting that he obviously suffered an adverse employment decision when he was terminated and he sufficiently pleaded his termination was because of his protected activity. Further, the temporal proximity between his leave and his termination established the requisite causal link, as he alleged he was terminated within days of requesting leave and only four days after being approved for leave.

His employer argued that he was required to show he engaged in protected activity, he was discharged, and there was a causal link between the protected activity and the discharge. It also contended that the employee did not engage in any protected activity because he did not allege he opposed any practice made unlawful by the FMLA. However, the court explained, the Fifth Circuit has repeatedly applied the prima facie standard used in the instant analysis for FMLA retaliation—(1) he was protected under the FMLA; (2) he suffered an adverse employment decision; and (3) the adverse decision was made because he took FMLA leave.

Even if it were to follow the employer’s proposed standard, the employee alleged sufficient facts, said the court, finding the employer’s argument that he did not engage in any protected activity frivolous. The employee requested leave in late August and was granted leave on September 4. "Both of these actions are considered ‘engaging in protected activity,’" the court declared.