The United States Court of Appeals for the Tenth Circuit says that the more an employee exercises rights under the Family and Medical Leave Act (FMLA), the more it will expect her to be aware of those rights and will enforce the notice requirements less strictly. The 10th Circuit also ruled that an employee on a final warning who violates a notice-of-absence policy cannot use the FMLA to avoid discipline.
The case is Branham v. Delta Airlines.
Georjane Branham sued Delta Airlines and her former supervisor on various claims related to her termination. The district court granted summary judgment in favor of the defendants and Ms. Branham appealed, challenging the district court’s ruling on her claim brought under the FMLA.
Ms. Branham worked as a flight attendant for Delta. In 2010, she reported for work when her blood-alcohol level was above the limit applicable to flight attendants. She was terminated but reinstated after completing an alcohol treatment program. She was then placed on final warning, meaning she could be terminated for any infraction of Delta’s policy or failure to meet Delta’s standards for as long as she continued working for Delta.
In 2012, Ms. Branham was on call from June 6th through the 8th. Flight attendants who are on call may receive an assignment to substitute for another flight attendant who is absent, but they are paid for being on call regardless of whether or not they receive an assignment. On June 7th, Ms. Branham was assigned a flight for 6:00 a.m. the next morning and she accepted the assignment at 11:30 p.m. But at 1:55 a.m. on June 8th she called in to inform Delta that she would be absent and to request a managed time out because she was taking care of her sick mother. Later that morning, Ms. Branham contacted her supervisor via e-mail to explain her request for a managed time out. She stated that her mother was very ill and she was still up and caring for her at 1:55 a.m. She further stated that she felt unfit to fly due to fatigue.
Her supervisor testified that when a flight attendant calls five hours before a shift while on call, it is deemed a failure to cover and the flight attendant may be subject to discipline for the rule violation. After a meeting with her supervisor, Ms. Branham was suspended. Delta reviewed her record and terminated her because she was on final warning, had three absences within the previous twelve months, and received the failure to cover on June 8th. Ms. Branham appealed her termination through all three steps of Delta’s appeals process, and her termination was upheld at each step.
Ms. Branham then filed various claims in the district court. The court determined Ms. Branham was terminated for failing to comply with Delta’s absence-notification policy—a reason that was not related to her exercise of her FMLA rights. The court also found that she had failed to provide Delta with sufficient information to reasonably apprise it that she might qualify for FMLA benefits. Further, because she had used FMLA leave several times before, the court determined she could not have been prejudiced by Delta’s alleged failure to notify her about the possibility of requesting such leave in connection with her June 8th absence. As a result, the court concluded Delta was entitled to summary judgment.
On appeal, Ms. Branham argued that the district court erred because the defendants terminated her based on the June 8th absence, which should have qualified as FMLA leave and because they failed to notify her she might be entitled to FMLA leave for the absence. The 10th Circuit said that Delta carried its burden of proving that Ms. Branham was dismissed for reasons unrelated to any FMLA leave to which she might otherwise have been entitled.
Ms. Branham also contended that the defendants failed to meet their obligations because they failed to inform her that she could apply for FMLA leave in connection with her June 8th absence. Ms. Branham asserted that the defendants’ obligations were triggered when she informed Delta that her mother was ill. The 10th Circuit said it would not conclude that Delta failed to meet its notification obligations because Ms. Branham already requested and received FMLA leave multiple times during her tenure at Delta—for herself and to care for family members.
Moreover, because Delta terminated Ms. Branham for reasons unrelated to FMLA leave, she did not show that she was prejudiced by the defendants’ alleged failure to better inform her about her FMLA rights.
This case is good news for employers in the 10th Circuit because that court will not strictly enforce notice standards for employees who have extensive experience with FMLA. Even so, employers may be able to avoid litigation if they comply with all the notice requirements.