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Teacher’s FMLA claims fail where he was ineligible for leave; indefinite absences prompted firing

By Ronald Miller, J.D.

A federal district court properly granted summary judgment against a teacher’s claim that a school district improperly handled his request for FMLA leave and forced him to resign in retaliation for seeking such leave, ruled the First Circuit (McArdle v Town of Dracut, October 9, 2013, Kayatta, W). Where the employee worked only 82 days in the 12 months preceding his request for FMLA leave, the 615 hours he worked did not come close to the 1,250 hours required for FMLA eligibility.

The employee began working as a middle school English teacher in 1997. In 2007, he began drinking excessively after he and his wife began divorce proceedings. The employee suffered depression, anxiety, foreclosure on his home, and personal bankruptcy. Reeling from his personal crisis, the employee began missing work. He went to work only 10 days in September 2008, and did not appear at all in October, November or December. After the winter break, his work record improved temporarily. In total, he came to school for only 82 days in the 2008-2009 school year. His absences exhausted the 15 days of sick leave and the two personal days to which he was entitled. Moreover, he exercised a contractual right to use his 15 days of sick leave for the 2009-2010 school year during the 2008-2009 school year.

Job abandonment. Throughout the 2008-2009 school year the employee provided only cursory explanations for his absences; he supplied the school principal with two notes indicating that he had a “medical condition” and was unable to work. He was disciplined for failing to leave lesson plans for a substitute. When the new school year began, the employee did not appear at school. Instead, he called his principal and informed her that he had made the decision that it would not be in anyone’s interest for him to come back to school. During that conversation, the employee stated that he wished to apply for FMLA leave. The principal informed him that he would have to contact the superintendent’s office. About two weeks later, the employee received an FMLA packet, informing him that he had to contact the superintendent in writing to request FMLA leave. The employee did not send notice of his desire for FMLA leave and did not return a completed medical certification.

On September 28, 2009, the employee was terminated for abandoning his position. His reply noted for the first time in writing his desire to take FMLA leave. Still he failed to provide a physician’s statement. Ultimately, the employee resigned his position and filed suit alleging that the school district violated his rights under the FMLA, among other claims. After discovery, the defendants successfully moved for summary judgment on all claims. This appeal ensued.

FMLA leave eligibility. The employee claimed that the school district violated the FMLA both by interfering with his attempt to seek permission to take FMLA leave, and by terminating him because he attempted to avail himself of the protections of the FMLA for the leave he took. Here, the appeals court determined that the employee had no cause for complaint of any type under the FMLA because he was ineligible to take FMLA leave. The employee argued on appeal that he was eligible for FMLA leave or that the school district should be estopped from denying that he was eligible.

To be eligible for FMLA leave, an employee must have “at least 1,250 hours of service with the employer during the previous 12-month period. Here, the school district demonstrated that the employee worked only 82 days in the 12 months preceding September 1, 2009. The employee testified that when he actually came to school he typically worked 7.5 hours. The collective bargaining agreement under which he was covered also specified a 7.5-hour workday. Thus, the employer worked only 615 hours. The court concluded that the gap between 615 hours and 1,250 hours was so large that it was implausible that the employee worked anywhere close to 1,250 hours. The employee’s own description of what he might do at home fell short of suggesting that his work at home was so substantial as to exceed his work at school. Thus, the employee failed to present sufficient evidence to create a genuine issue of fact as to the number of hours he actually worked during the 12 months preceding his request for leave.

Handling of FMLA application. Moreover, the court declined to find that the school district interfered with his FMLA rights by the manner in which it handled his FMLA leave application. Here, it was not clear that the employee’s communications with the school district were sufficient to trigger an obligation to provide notice of eligibility when it had already sent him the medical certification form and notice that a written request was required to obtain FMLA leave. The employee pointed to nothing that he could or would have done differently had the school district told him in early September 2009, that he was not eligible for FMLA leave. Thus, no harm was suffered by reason of the alleged violations.

Retaliation claim. Finally, the employee was unable to establish that the school district retaliated against him for exercising his FMLA rights. The First Circuit noted that there is a split in authority as to whether an employee who is not eligible for FMLA leave can bring a retaliation claim under the FMLA. At any rate, the appeals court said it was not convinced that an employee who is ineligible for FMLA leave can never bring a retaliation claim. Firing an employee for asking would frustrate the aims of the Act even if the inquiring employee turns out to be ineligible. However, here, the employee was not fired for asking to take FMLA leave. Rather, he was fired because the school district concluded that his indefinite absences without advance notice permitted it to fire him.