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Question: Can an employer be liable for retaliating against an employee for seeking leave under the Family Medical Leave Act ("FMLA"), where it is undisputed that the employee was ineligible for the requested leave?
Answer: Possibly.
The United States Courts of Appeals are split on the issue of whether employers may be held liable for retaliating against an employee for requesting leave for which the employee is ineligible under the FMLA. The First Circuit Court of Appeals, which includes New Hampshire and Massachusetts, has not ruled on this issue and, in a recently issued opinion, McArdle v. Town of Dracut, continued to walk the line without resolving the issue.
In McArdle, the plaintiff had been employed as a teacher for the Town of Dracut, Massachusetts since 1997. Beginning in 2007, he began facing personal troubles including divorce, foreclosure, depression, and alcohol dependency that caused him to miss numerous school days during the 2008-2009 school year. Instead of arriving for school when the 2009-2010 school year began, the plaintiff called the principal and informed her that he would not be coming in and requesting, for the first time, FMLA leave. The principal directed him to the superintendent, whose secretary sent the plaintiff the necessary FMLA leave paperwork that explicitly required a written request for leave. The plaintiff failed to return the written request or a completed medical certification. The plaintiff also failed to arrange for a substitute in his absence, which was required of his position. After waiting approximately a month, the Town terminated the plaintiff for abandoning his position. Thereafter, the plaintiff brought suit against the Town, as well as his former supervisors, alleging that the Town improperly handled his request for leave under the FMLA and retaliated against him for seeking such leave.
The United States District Court for the District of Massachusetts dismissed all of the plaintiff's claims after ruling that he was ineligible for FMLA leave because he had not worked sufficient hours in the prior year to be an "eligible employee" under the Act and ruling that the plaintiff's remaining claims were meritless. The First Circuit affirmed.
FMLA Eligibility: The FMLA guarantees an eligible employee the right to take twelve weeks of unpaid leave if, among other things, a serious medical condition renders the employee unable to perform his job. Additionally, the FMLA makes it unlawful for an employer to "interfere with, restrain, or deny the exercise or the attempt to exercise, any right provided" by the FMLA. In order to be "eligible" under the FMLA, an employee must have worked at least 1,250 hours for his employer during the previous 12-month period. Due to the plaintiff's extensive absences from work during the 2008-2009 school year, the Court determined that he had been in the classroom for only 615 hours in the year prior to his termination. Although the Court has in prior cases permitted evidence that a teacher's take-home work can be used to meet the hours-worked eligibility threshold, in this case the Court upheld the district court's ruling that the "gap between 615 and 1,250 hours is so large that it is entirely implausible on this record that [the plaintiff] worked anywhere close to 1,250 hours."
FMLA Interference: Having determined that the plaintiff was ineligible to take leave under the FMLA, the Court also upheld the district court's dismissal of the plaintiff's FMLA interference claim. In so ruling, the Court concluded that, to the extent the Town mishandled his leave application, such mishandling caused the plaintiff no harm, since the plaintiff was ineligible for FMLA and he offered no evidence that he was otherwise eligible for some other form of leave or that he planned to return to work following his leave.
FMLA Retaliation: Thereafter, the Court took up the plaintiff's retaliation claim, which the Court described as based on "the rather contrived argument that [the plaintiff] was fired not for taking the unsanctioned leave he took, but because he asked for FMLA leave, [i.e.] that he was fired, not because he was absent, but because he asked whether he had the right to be absent." The Court acknowledged that the circuit courts are split on whether "one not entitled to take FMLA leave 'avails himself of a protected right' when requesting to take such leave," as is required to establish a retaliation claim under the FMLA. Despite describing the plaintiff's argument as "contrived," the Court stated that "[w]e are not convinced that an employee who is ineligible for FMLA leave can never bring a retaliation claim." The Court reasoned that where the Act prohibits employers from interfering with the exercise of FMLA rights and the attempt to exercise such rights without requiring that such an attempt be successful, it is reasonable that "firing an employee for asking [to take leave] would also frustrate the aims of the Act even if the inquiring employee turns out to be ineligible." However, the Court determined that it need not resolve this issue on the facts presented in McArdle, because "the only reasonable reading of the record is that [the plaintiff] was not fired for asking to take FMLA leave[, but for] his renewed and indefinite absence, without advance notice."
Employer Takeaways: Although the Court refused to definitively rule on whether an employee who is ineligible for FMLA leave could nonetheless assert a viable claim for retaliation under the Act, the Court indicated that it would be unwilling to establish a black line rule to the contrary. This ruling highlights that any time an employee requests FMLA leave, even if he/she is ultimately found to be FMLA ineligible, employers should treat the request as protected activity under the FMLA. In other words, employers should consider the potential legal risks before taking any adverse employment action against any employee who has recently requested FMLA leave. Any adverse action, such as termination or demotion, occurring shortly after such a request may potentially lead to a retaliation claim under the FMLA. To be clear, this does not mean that employers are prohibited under the FMLA from taking adverse action against such employees for some other sufficient, non-pretextual reason. However, an assessment of the legal risks pre-adverse action is always a best practice in these circumstances.
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