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Unmarried employee not entitled to FMLA leave to care for hospitalized partner or unborn child

By Brandi O. Brown, J.D.

Terminated due to absences from work to take care of his hospitalized pregnant partner, a Sudanese immigrant who alleged that his rights were violated under the FMLA, Title VII, the ADA, and state law could not proceed with his claims, ruled a federal district court in Kentucky. The employee was not entitled to FMLA leave because his partner was not his spouse, and his child was not yet born at the time of the absences that precipitated his termination. The defendant’s motion for summary judgment was granted on all claims (Lukudu v JBS USA, LLC, March 14, 2014, Russell, T).

In 2004, the plaintiff immigrated to the United States from the Sudan. After he had been employed by the employer for a few years, the employee and his partner began living together. Although they were not legally married, they referred to one another as husband and wife at various times. The employer, a hog slaughtering and processing plant, had a written attendance policy, as well as an employee handbook that incorporated the policy. The attendance policy operated under a points system that assigned different points for no show/no call absences, tardiness, and other absences, but allowed for excused (point-free) absences. Leaves of absence for serious or emergency matters were considered excused absences, but had to be approved by HR. FMLA leave was included under available leaves of absence in the employee handbook. Under the policy, employees who accumulated seven or more points could be terminated.

In June 2011, the plaintiff received a final written warning because he had accrued six and one half points under the attendance policy. Two days later, he learned that his partner was in the hospital. He alleged that he called the employer’s absence hotline to report that he had a family problem and that he was going to the hospital. After this occurrence, he received a termination notice, noting the earlier written warning and stating that his termination was based on his accumulation of seven and one half points. The plaintiff testified that he discussed FMLA leave with his supervisor, but that he had not picked up a packet of FMLA forms. He never submitted FMLA paperwork. He filed a union grievance, which was initially pursued, but later dropped. Thereafter, the employee filed an EEOC charge alleging race, national origin, and disability discrimination and subsequently filed suit.

FMLA eligibility. The employee included claims for FMLA interference and retaliation in his complaint, based on the denial of his request for leave and his discharge. The court found that those claims failed as a matter of law. First, the employee was not entitled to leave to care for the mother of his child because she was not his spouse. Under the FMLA, a wife is included in the meaning of the word “spouse” but whether or not the employee’s partner was his wife was a matter of state law. Kentucky, however, did not recognize common-law marriages. Therefore, the employee’s partner was not his “spouse” for purposes of the FMLA. Additionally, the court was not the proper forum to hear the employee’s plea to change the FMLA to recognize their relationship as a marriage for purposes of that law.

Care for unborn child. Further, the employee was not entitled to FMLA leave in order to care for his son because his termination came one week before his son was born. It was “impossible” for the employee to be entitled to leave for the birth of his son and to care for that son when the child had not been born. Likewise, the court found, it was “impossible” for the absence points he accrued to be in response to caring for an unborn child. The employee’s retaliation claim also failed because he did not show that he “availed himself of a protected right under the FMLA.” He did not notify his employer of his intent to take leave and he could not show a causal connection between exercise of his rights and the termination.

Associational disability discrimination. Similarly, the employee could not move forward with his association-based ADA and state law claims. Although the court assumed for the purposes of its discussion that the employee’s partner was a qualified individual with a disability, it noted that under existing Sixth Circuit precedent employers were not required to provide accommodations to non-disabled workers, including spouses. That position was further supported by interpretive guidance under the ADA.

Furthermore, the employee’s discrimination claim failed because he offered no evidence showing that the termination decision was made under circumstances leading to an inference that his partner’s disability was a “determining factor.” Although the employer knew of his partner’s disability, the employee still had to offer evidence showing that the action was due to discriminatory animus, at least in some measure. There was nothing to indicate, however, that his termination was for any reason other than his absenteeism.

Race, color, and national origin claims. Because the employee triggered mixed-motive analysis in his response to the employer’s summary judgment motion, the court applied that analysis to his claims. It considered whether he had produced evidence sufficient to convince a jury that his race, color, or national origin was a motivating factor in the termination. He did not. Although he testified regarding two employees (one white and one who was “Spanish”), the employee did not present any evidence in support of his claims. He did not provide deposition testimony from those employees or submit affidavits or other statements. He could not avoid his obligation by claiming that the employer possessed the proof that he needed. He had almost nine months for discovery and made no request for an extension.

The court also granted summary judgment on the plaintiff’s claim for punitive damages, noting its satisfaction that the employee had not offered evidence of the requisite malice or indifference necessary to sustain such a claim.