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Fired for missing work after son’s birth, father’s FMLA interference claims fail but retaliation claim advances

By Kathleen Kapusta, J.D.

Th employee, however, is allowed to amend his complaint to cure the deficiencies in his FMLA interference claims.

Dismissing in large part the FMLA interference claims of an employee fired after missing work when his son was born prematurely, a federal district court in New York found he failed to state sufficient facts regarding his eligibility, his employer’s status, and his entitlement to take FMLA leave. The court, however, granted the employee’s motion to amend the complaint to cure any deficiencies. However, his FMLA retaliation claim, in which he alleged he was fired for exercising his FMLA rights, survived the employer’s motion (McKenzie v. Erie County Medical Center, Corp., November 4, 2019, Skretny, W.).

Son’s birth. Sometime in the spring of 2015, the medical center employee told his supervisor that his girlfriend was pregnant and that he would need to take FMLA leave after the birth of his child. Not long after that, the employee’s son was born prematurely, requiring hospitalization in the newborn intensive care unit.

The employee was on vacation leave at the time and did not return to work as scheduled. Instead he called in sick for almost three weeks. During that time, his supervisor called the employee and asked him to contact him. Although the employee tried to call back, he was unable to leave a message because the supervisor’s voice mailbox was full. He went to the medical center twice in person to find his supervisor but both times, the supervisor was absent.

Fired. The employee ultimately met with his supervisor about a month after the birth of his son. Although he informed the employer at that meeting about his son’s birth and hospitalization, he was fired for attendance violations.

FMLA interference. In his subsequent lawsuit, the employee alleged that his employer interfered with his FMLA rights by not granting him leave for the birth or hospitalization of his son, by not providing him with written notice of his FMLA eligibility within five days of learning of his leave request or of his son’s hospitalization, and by terminating him after learning of his son’s birth and hospitalization.

Eligible employee. Granting his employer’s motion to dismiss, the court first found that while the employee stated in his complaint that he was an “eligible employee,” he did not provide a factual basis for that claim. It is not enough, said the court, for an employee to assert in a conclusory manner that he is eligible without stating any facts relating to the definition of an eligible employee—specifically, that he worked at least 1,250 hours in a 12-month period.

Employer status. Nor did he allege any facts to support his conclusory statement that the medical center was an “employer under the FMLA,” the court observed, noting that the FMLA defines “employer” as “any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year,” and the employee did not allege any facts to this effect.

He also failed to allege he was entitled to FMLA leave or to provide a factual basis for such an allegation, the court stated, dismissing his FMLA interference claims.

Notice. And while the employer also argued that the employee failed to provide notice of his need for FLMA leave because he called in sick rather than notifying it “as soon as practical” of the change in timing for his need for leave, the court found dismissal was not warranted on this basis. The employee alleged he notified his employer when he first told his supervisor about his need for leave before the birth of his son and that he tried to give further notice by calling his supervisor and visiting the workplace. Further, he claimed that after he told his supervisor of his need for leave, he was never informed of his eligibility and obligations under the FMLA, was never granted leave, and was terminated. This was sufficient to allege notice, said the court.

Motion to amend. Granting the employee’s motion to amend his complaint to cure any deficiencies, the court found it was in the interests of justice to permit him to amend his interference claims.

Retaliation claim. Finally, while his employer argued that the employee did not plead sufficient facts to make a prima facie case for retaliation—he alleged that the medical center retaliated against him for exercising his FMLA rights by terminating him—in the Second Circuit, plaintiffs bringing FMLA retaliation claims need only plead enough facts that, if true, state a claim to relief that is plausible on its face. And here, the employee did just that by alleging that he exercised an FMLA right by requesting and taking leave for his son’s birth, that he was qualified for his position, that he was terminated for taking this leave, and that his termination was in direct response to his taking leave for his son’s birth.