The Eighth Circuit has rejected a plaintiff’s claim that she provided sufficient notice of her need for FMLA leave although she failed to contact her employer for more than a month. Bosley v. Cargill Meat Solutions Corporation (8th Cir. February 5, 2013).

On February 1, 2008, an employee with whom the plaintiff carpooled told the company that plaintiff would not be in because she was sick. The plaintiff did not contact the company until March 3, 2008, when she went to the company to get FMLA forms to cover her February absences, which she claimed were due to her depression. A week prior, the Company had terminated her for three consecutive call-in violations.  

In affirming summary judgment for the employer on plaintiff’s FMLA interference and retaliation claims, the court concluded that the plaintiff had failed to give the company notice of her need for FMLA-qualifying leave. The court rejected the argument that plaintiff’s carpooling coworker provided notice of her need for leave because the co-worker could not recall whether she told the company that plaintiff was depressed. The court also rejected plaintiff’s effort to be excused from providing notice because of the “extraordinary circumstances” exception. The court held that that the exception does not excuse notice completely, and that at least as of February 25, plaintiff was not incapacitated and could have contacted the company. The court also rejected plaintiff’s argument that her behavior provided the company “constructive notice” of her need for FMLA leave. The court held that an employee has an affirmative duty to notify his or her employer about the need for leave that might be FMLA-qualifying, and rejected any “constructive notice” argument that would negate this duty.

The Eight Circuit also changed the nomenclature in FMLA litigation by renaming “interference” claims as “entitlement” claims, noting that such a claim involves the denial of a benefit to which an employee is “entitled” under the statute.