LEAVE NEED NOT COMMENCE TO INVOKE PROTECTION OF FMLA RIGHTS

John GarnerDMEC News

With the principal issue on appeal being whether the plaintiff accumulated sufficient hours to qualify for leave under the Family and Medical Leave Act (FMLA), Brenda Erdman (Erdman) challenged the District Court’s summary judgment in favor of her former employer, Nationwide Insurance Company (Nationwide).  Reviewing the facts in the light most favorable to Erdman, the United State Court of Appeals for the Third Circuit reversed in part the District Courts summary judgment in her FMLA retaliation claim and remanded the case for further proceedings.  They did, however, agree that Erdman had not established her ADA “association” claim, concurring with the lower courts findings.

The case is Brenda L. Erdman vs. Nationwide Insurance Company

After working full-time for Nationwide for more than 18 years, Brenda Erdman changed her work schedule to part-time so that she could care for her daughter Amber, who was born with Down Syndrome.  Nationwide granted this request, as well as Erdman’s request four years later to switch to a four-day workweek.  According to Erdman’s supervisor at the time, Erdman was a reliable employee who regularly worked extra hours outside the office, which were consistently authorized for payment or allowed as “comp” time.

In early 2002, soon after Erdman switched to a four-day work week, her supervisor at the time informed her that she should “put in the hours that . . . you’re supposed to put in and nothing more than that.”  In September 2002, Erdman e-mailed her new supervisor of 5-months to request clarification as to whether she was still allowed to work extra hours for use as “comp” time.  Despite this e-mail, Nationwide claims that the first mention of “comp” time came up in a January 2003 meeting regarding a discrepancy in Erdman’s accrued vacation time.  At this meeting Erdman explained that she had used “comp” time, and Nationwide had conceded that Erdman’s vacation time calculation was correct, and made no objection of her use of “comp” time.

A week later, on January 28, 2003, Erdman received an e-mail admonishing her for: (1) unapproved overtime, (2) failure to consult her supervisor before visiting a policyholder’s residence; and (3) employees in Erdman’s position were not authorized to conduct fieldwork.  It wasn’t until two weeks later, on February 10, 2003, that Erdman was first advised that she could no longer use extra hours for “comp” time.

Soon after receiving the January 28, 2003 e-mail Nationwide eliminated Erdman’s part-time position, advising her that she could work full-time.  At the time Erdman accepted the position, she sought clarification that Nationwide would honor her previously-approved request for vacation during the entire month of August, which Erdman had typically taken to prepare Amber for school.  Nationwide informed Erdman that it was unlikely she would be allowed to take vacation in August because of the pressing need for full-time employees in light of the unusually large number of employees requesting vacation that month.  Erdman announced that if she could not use vacation time in August, she would request FMLA leave instead.  A week after she began working full-time, Erdman submitted paperwork requesting FMLA leave from July 7 to August 29.  A human resources employee responded to this request by telling Erdman that “as far as the FMLA, I probably don’t see any problems with this.”

Nationwide fired Erdman on May 9, 2003, citing purported behavioral problems and claimed that Erdman became angry and erratic because she was unhappy with her return to full-time status.

Erdman then sued Nationwide, arguing that “Nationwide’s stated motives were pretextual and that she was actually fired for requesting FMLA leave.”  When the District Court granted summary judgment to Nationwide Erdman appealed.

The Appeals Court first questioned whether a reasonable jury could have concluded that Nationwide had actual or constructive notice that Erdman worked at least 1,250 hours, making her eligible under the FMLA. 

In general the term “eligible employee” means an employee who has been employed – (i) for at least 12-months by the employer with respect to whom leave is requested; and (ii) for at least 1,250 hours of service with the employer during the previous 12-month period.  According to Erdman’s records, she had worked 1,298.25 hours in the relevant period, including 118.5 hours from home.  The Appeals Court found that in its calculation the District Court had excluded 57 hours worked from home prior to Erdman’s September 2002 e-mail, asking whether she was allowed to work extra hours for use as “comp” time, and 20 hours worked from home after the January 2003 e-mail to Erdman admonishing her for doing fieldwork.  

For FMLA purposes, all work that “the employer knows or has reason to believe is being performed” counts toward the threshold requirement (29 C.F.R. § 785.12).  When read in the light most favorable to Erdman, the Appeals Court determined that a reasonable jury could conclude that Nationwide had constructive notice of hours that Erdman worked from home until February 10, 2003, when Nationwide finally addressed the issue and prohibited Erdman from accruing and using “comp” time.  After counting all eligible hours, it was found that Erdman had accumulated 1,282.25 total hours in the year before her requested leave was scheduled to begin.

The Appeals Court also rejected Nationwide’s defense that the FMLA retaliation section does not prevent an employer from firing someone “before” they take FMLA leave.  The Appeals Court began by saying that “it would be patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability simply by firing the employee before the leave begins.”  But, for Erdman’s retaliation claim to be viable for trial, the question before the court was not whether an employer could escape liability altogether; but whether such action constituted interference with the employee’s FMLA rights, retaliation against the employee, or both.”

With Nationwide further arguing that if Erdman was eligible for FMLA leave, she could not recover on a retaliation theory because she did not actually “take” leave, the Appeals Court advised that the court’s understanding of the law interpreted the word “take” to “connote invocation of FMLA rights, not actual commencement of leave.”  The court also stated that firing an employee for a valid request for FMLA leave may constitute interference with the employee’s FMLA rights as well as retaliation against the employee.  The Appeals Court vacated the summary judgment on Erdman’s FMLA claim and remanded it for further proceedings. 

The Appeals Court did, however, concur with the District Court on Erdman’s ADA “association” claim.  Finding the record to be devoid of evidence to indicate that the decision to fire Erdman was motivated by her daughter’s disability, the Appeals Court agreed that no reasonable jury could conclude that she was fired because of a disability that Nationwide had known about for many years before the incident occurred.

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