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Employer did nothing wrong by firing pre-FMLA eligible employee after she advised him of need for cancer surgery once she became FMLA eligible

January 21st, 2013  |  Ron Miller

Consider this scenario, you’re fairly new at your job as an administrative assistant and enjoy the work quite a bit. You’ve successfully completed your probationary period and your boss seems satisfied with your performance. But now, you’ve been diagnosed with cancer and your doctor is recommending surgery. You are aware that you have some leave rights but you still have several weeks before you become eligible.

Being a conscientious employee, you duly advise your supervisor of your medical condition, and advise him that you plan to take medical leave once you become eligible. Too your complete surprise he responds that he needs a full-time employee and fires you. After you consult an attorney, he thinks that you have a pretty good case, there’s a ruling out of the Eleventh Circuit that says the employer is wrong. So what happens?

In Dunn v Chattanooga Publishing Co, a federal district court in Tennessee determined that a pre-FMLA eligible employee who was diagnosed with cancer, and who was subsequently discharged after she notified her employer of her post-eligible plans to undergo surgery and take medical leave, could not advance her FMLA claims. Granting the employer’s motion to dismiss, the court declined to follow a recent Eleventh Circuit case, Pereda v Brookdale Senior Living Communities, Inc, offering conflicting precedent.

Non-eligible status. Because the employee was admittedly not an “eligible employee” under the FMLA at the time of her discharge, her claims could not proceed, ruled the court. Declining to follow the Eleventh Circuit’s contrary ruling in Pereda, the court reaffirmed its two prior rulings holding that a pre-eligibility employee may not make a valid FMLA claim where she notified her employer of planned post-eligibility leave. In those cases, the district court had held that recovery under either the interference or retaliation theories was limited to “eligible employees,” rejecting the argument an ineligible employee could recover for interference with, or discrimination for, anticipated post-eligibility leave. The court, in those rulings, had followed the controlling Sixth Circuit precedent, which, although not addressing this precise issue, held that ineligible employees were barred from making FMLA claims.

The court squarely rejected the Eleventh Circuit’s conflicting ruling in Pereda, which held that a pre-eligibility employee who notified her employer of expected post-eligibility medical leave was entitled to FMLA protection. In that case, the appeals court noted that the FMLA required an employee seeking FMLA leave after the birth of a child, or for foster care, to first provide her employer 30-days’ notice of the foreseeable leave. The court concluded that applying the notice requirement while simultaneously withholding protection to pre-eligible employees seeking post-eligibility leave created a hole of protection incompatible with the purposes of the FMLA.

The Eleventh Circuit also pointed to Department of Labor regulations, which require a determination as to FMLA eligibility be made “as of the date the FMLA leave is to start.” Further, the appeals court noted the reference to “employee” rather than “eligible employee” in the statute’s notice requirement. It found this constituted recognition that some ineligible employees would be required to notify employers of expected post-eligibility leave. Thus, it concluded that a pre-eligibility employee notifying an employer of post-eligibility leave was entitled to FMLA protection from both interference and retaliation.

Rejecting the reasoning of the Eleventh Circuit, the district court noted that its prior rulings to the contrary were based on binding Sixth Circuit precedent that it could not ignore. It conceded that its interpretation of the statute left a small class of employees without the FMLA’s protection, but emphasized that Congress intended to omit certain employees from protection. Indeed, among those omitted were employees who had been employed for less than one year. Accordingly, the court dismissed the employee’s FMLA claim.

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