Disability, Leave & Health Management Blog : Attorneys & Lawyers for Employer Legal Protections in Businesses Nationwide

 A terminated employee who had made a “pre-eligibility request” for a ”post-eligibility leave” can pursue FMLA interference and retaliation claims, according to the United States Court of Appeals for the Eleventh Circuit. The Court reversed the district court decision, which had dismissed both claims because the plaintiff was not FMLA-eligible at the time of her termination.   Pereda v. Brookdale Senior Living Communities, Inc., (1/10/12).

Eight months into her employment, the plaintiff told her employer she was pregnant and would need FMLA leave for her child’s birth, which would occur after she had met the FMLA eligibility requirements. The employer discharged plaintiff before she had completed 12 months of employment.

The Eleventh Circuit held that because the FMLA requires notice prior to leave, employees are protected from interference prior to the occurrence of the triggering event such as the birth of a child. If it were to  hold otherwise, the Court said, the advanced notice requirement “becomes a trap for newer employees.” The court added that because “ a full term pregnancy takes nine months to complete, not affording pre-eligible expecting parents any protection would leave them exposed to adverse action by their employer.”

The Court also held that a pre-eligible request for post-eligible leave is protected activity sufficient to support an FMLA  retaliation claim.  Quoting an Oklahoma federal district court decision, the Court noted that “if courts were to read the FMLA to allow employers to dismiss ineligible employees who give advance notice of their need for FMLA leave, it would open a large loophole in the law…”

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An employee must arbitrate his FMLA claim where the labor contract governing his employment waived his right to pursue employment claims in court, according to the United States Court of Appeals for the Eighth Circuit. Thompson v. Air Transport Int’l LLC (12/28/11). The Court relied on the Supreme Court’s 2009 decision in 14 Penn Plaza LLC v. Pyett, which held that a mandatory arbitration clause in a labor contract required an employee to arbitrate his age discrimination claim.
 

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“Severe obesity” is a disability under the ADA and a plaintiff need not prove an underlying physiological basis for it, according to a Louisiana federal court. The court denied the employer’s motion for summary judgment. EEOC v. Resources for Human Dev., E.D. La., 12/7/11).

Noting that there is no federal law prohibiting discrimination based on obesity, the court reviewed decisions by courts of appeals which had previously considered whether obesity is a disability under federal laws prohibiting discrimination on the basis of a disability. The Second and Sixth Circuits had held in ADA cases that morbid obesity was not an impairment, and thus not a disability under the ADA, except where the obesity related to a physiological disorder. The First Circuit had held in a Rehabilitation Act case that morbid obesity was a physical impairment.

The plaintiff oversaw a day care program for children. When hired, she weighed more than 400 pounds; when terminated eight years later, she weighed 527 pounds.  She died while her discrimination charge was pending; the EEOC filed this suit on behalf of her estate.

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