Court Hangs Up on FMLA Claim of Employee Who Did Not Respond to Supervisor's Fifteen Calls

Posted on February 19, 2011 by Michael Soltis

The termination of an employee who, after leaving work to deal with his mother’s medical emergency, failed to respond to his supervisor’s fifteen calls over the next eight days or otherwise contact the company, did not violate the FMLA, the Seventh Circuit held recently.

Affirming summary judgment for the employer in Righi v. SMC Corporation of America, the court held that plaintiff’s failure to respond to these calls “dooms” his FMLA claim, noting that the FMLA does not authorize employees to “keep their employers in the dark about when they will return” from leave.

The day following his sudden departure, the plaintiff emailed his supervisor that he needed “the next couple of days off” to make arrangements for his mother’s care. He also noted that “I do have the vacation time, or I could apply for the family care act, which I do not want to do at this time.”

Noting that “it does not take much for an employee to invoke his FMLA rights,” the court said that the email was sufficient to alert his employer that the plaintiff might need FMLA leave but because the request was equivocal, the employer had a duty “to make further inquiry…using informal means” to determine whether the plaintiff was seeking FMLA leave. The supervisor’s repeated calls satisfied the employer’s duty, according to the court.

The court noted that the plaintiff had also failed to comply with his employer’s internal leave policies and procedures concerning notice. This failure is another reason to dismiss plaintiff’s FMLA claim, according to the court.

Tags:

Chillin' with the FMLA: Supervisor's Weekly Phone Calls To Employee During Leave May Have Interfered with FMLA Rights

Posted on February 19, 2011 by Michael Soltis

Relying on “chill theory,” a federal district court in Arkansas held recently that an employer who had granted the plaintiff her requested FMLA leave and had reinstated her when her doctor released her to return, nonetheless may have interfered with her FMLA rights when her supervisor called her weekly during the leave to ask when she was going to return to work. The plaintiff said she “felt pressured” by these calls. A month after plaintiff’s return to work, the employer terminated her for theft. In Terwilliger v. Howard Memorial Hospital, the court denied the employer’s motion for summary judgment on the FMLA interference claim, holding that a reasonable jury could conclude that the supervisor’s weekly calls “interfered with plaintiff’s exercise of her FMLA rights by discouraging or chilling her exercise of those rights.”

The court observed that “[p]laintiff had a right not to be discouraged from taking FMLA leave,” suggesting that the calls may have been discouraging, although nothing in the decision suggests plaintiff returned to work earlier than she should have as a result of the calls. Reconciling the employer’s right to communicate with an employee on FMLA leave with an employee’s right not to be discouraged by such communications could be tricky. When considering terminating an employee who is on or recently returned from an FMLA leave, an employer should consider the nature and extent of its communications with the employee to evaluate the FMLA interference claim. In Terwilliger, since the court had dismissed the plaintiff’s FMLA retaliation claim, the interference claim is the only issue proceeding to trial.

Tags: