Sick-leave.com :: Family Leave Act Cases

Federal and state courts have been issuing increasing numbers of FMLA decisions. The summaries below are intended to represent a sampling only; there may be other cases directly contradicting the holdings of the cases mentioned. For a complete evaluation of current case law, consult an attorney.

1. High Risk Pregnancy Can Be A "Serious Health Condition"
Navarro-Pomares v. Pfizer Corp. (1st Cir. 2001) Case No. 00-1856 (employer violated the FMLA when it refused to permit employee to take FMLA leave to care for her adult daughter, who was experiencing a temporarily disabling pregnancy. The appeals court held that the term "serious health condition" explicitly includes "a period of incapacity due to pregnancy or for prenatal care".)

2. The Fact a "Minor Illness" Normally Does Not Fall Within The Definition of a "Serious Health Condition" Does Not Mean That Such Ailments Can Never Be "Serious Health Conditions" Under The FMLA.
Thorson v. Gemini, Inc. (8th Cir. 2000) 205 F.3d 370 (Thorson was out ill for several days, saw her doctor twice and had tests for a suspected ulcer which turned out to be negative. Upon her return to work she was fired for excessive absenteeism. Another doctor later diagnosed her with a small hiatal hernia, mild antral gastritis and duodenitis, all stress-related. Gemini argued that while employed, Thorson had not undergone continuous treatment and that her illness was minor and thus, her absences were not protected by the FMLA. Specifically, the company pointed to a 1995 DOL opinion letter which stated that absent complications, minor illnesses such as "ulcers" were not serious health conditions. In response, the court noted that the DOL also issued a seemingly inconsistent opinion letter in 1996 which stated that "complications per se were not necessary if the period of incapacity and continuing treatment test were otherwise met." Reluctant to rely on inconsistent administrative interpretations, the court stated that even without deferring to the DOL opinion letters, Thorson was sufficiently ill to see her doctor twice in just a few days and that is all that is required for continuing treatment. Additionally, the court noted that simply because a minor illness normally does not fall within the definition of "serious health condition" that does not mean that such ailments can never be "serious health conditions" under the FMLA.)

3. Child's Ear Infection May Be A "Serious Health Condition"
Caldwell v. Holland of Texas (8th Cir. 2000) 208 F.3d 671 (an employee who was fired after missing work because her three year old son suffered from the sudden onset of an ear infection may be covered by the FMLA. The employee's son was treated with two 10-day courses of antibiotics and eventually needed surgery to remove his tonsils and adenoids. The court held that there was a genuine issue of material fact as to whether the child was incapacitated for more than three consecutive days and whether he subsequently received continued, supervised treatment. The proper measurement of what constitutes incapacity for a three year old is whether the condition demonstrably affected his normal activities. Appropriate factors to consider included, but were not limited to, whether the child participated in his daily routine or was particularly difficult to care for during that period, and whether a daycare facility would have allowed a child with the illness to attend its sessions.)

4. Even if One Can Work In Another Position, Inability To Do One's Own Job Can Be "Serious Health Condition"
Stekloff v. St. John's Mercy Health Sys. (8th Cir. 2000) 218 F3d 858 (being unable to perform one's job for more than three days can qualify as a serious health condition under the FMLA, even if one is able to work at another similar job while recuperating. In this case, a psychiatric nurse left her job after an argument with her supervisor. Her doctor recommended that she take approximately two weeks off work from her regular job. The employee trained at another hospital while she was unable to work at her regular employer, St. John's. Eight days later, St. John's fired the employeer for job abandonment. The court held that the employee presented more than enough evidence to allow a reasonable jury to find that she was unable to work in her job at St. John's for a period of more than three consecutive calendar days. The employee's ability to work at another hospital did not prove she was able to work at St. John's.)

5. Taking Son to Live with Uncle Is Not "Care" Under FMLA
Marchisheck v. San Mateo County (9th Cir. 1999) 199 F.3d 1068 (a hospital employee who was fired for taking five weeks of unauthorized leave to remove her son from what she perceived as a physically and psychologically dangerous environment was not covered by the FMLA. While the employee's desire to move her son to a more wholesome environment was laudable, her "predicament is not one that Congress protected through the FMLA nor one that the California legislature protected through the CFRA [California Family Rights Act]". Those statutes are designed to permit employees to take leaves for certain medical purposes only.)

6. Employee Was Not Entitled To Leave Because Adult Daughter Was Capable of Self-Care
Sakellarion v. Judge & Dolph Ltd. (N.D. Ill. 1995) 893 F. Supp. 800 (employee fired for excessive absenteeism claimed that the absence for which she was terminated qualified for FMLA leave. Sakellarion missed work to care for her adult daughter after she suffered from an asthma attack. The court held that Sakellarion's daughter did not suffer from an FMLA-qualifying serious health condition because she did not require continuing treatment from a health care provider and because the daughter was capable of self-care.

7. Leave Taken To Care For Adult Son Qualified Under FMLA Where Son Not Capable of Self-Care
Bryant v. Delbar Products, Inc. (M.D. Tenn. 1998) 18 F. Supp. 2d 799 (Bryant worked for Delbar Products Inc. when her son was hospitalized for advanced kidney failure. The company assessed her unexcused absences, which eventually led to her dismissal, when she missed work to provide care for her son. She brought suit against Delbar, claiming the absences were FMLA- qualifying, but the company maintained that because her son was more that 18 years of age, the leave was not protected under the FMLA. The court ruled that because Bryant's son was incapable of self- care and physically disabled as those terms are defined by the leave law, the leave was covered by the FMLA.)

8. Employee Fired For Leaving Work To Help Chronically Ill Mother Move Not Protected By The FMLA
Pang v. Beverly Hosp., Inc. (2000) 79 Cal. App. 4th 986 (an employee who was fired for leaving work to help her chronically--ill mother move into a new single-story home that would enable the mother to remain independent and suit her medical restrictions did not have a claim under the California Family Rights Act ("CFRA"). The CFRA is aimed at "the kinds of hands-on, daily care needed to assist a person struggling with a serious medical or psychological condition. Although Pang was caring for her mother in the practical sense...she was not doing so for purposes of the CFRA." The court interpreted CFRA's various references to "care" as being "aimed at the kinds of hands-on, daily care needed to assist a person struggling with a serious medical or psychological condition -administering various treatments and medications, preparing their meals, tending to their personal hygiene needs, taking them to their health care providers, and supplying the emotional comfort and support often needed to see a loved one through such trying circumstances.")

9. Taking FMLA Leave For Multiple Medical Ailments
Ozolins v. Northwood v. Kensett Community School District (N.D. Iowa 1999) (an employee could take FMLA leave to care for her mother who had recently fallen and suffered a bruised hip but also suffered from heart disease with angina, significant coronary artery disease, colon problems, ulcers, small strokes, diarrhea with bleeding, internal hemorrhoids, a history of back surgery, depression, flashbacks, sleep difficulties and recurring problems with falls. The court found that in this case the fall, coupled with the other ailments, caused the employee's mother to be incapacitated, and unable to care for her own basic needs, for more than three days.)

Price v. City of Fort Wayne (7th Cir. 1997) 117 F. 3d 1022 (an employee who suffered from elevated blood pressure, hyperthroidsim, back pain, severe headaches, sinusitis, infected cyst, sore and swelling throat, coughing and feelings of stress and depression which were temporaly linked and caused a three-week absence from work in a two-month period could be entitled to FMLA leave for such ailments.)

McClain v. Southwest Steel Co., Inc. (N.D. Okl. 1996) 940 F.Supp. 295 (summary judgment inappropriate where employee attributed absenteeism to chronic nausea, diarrhea, vomiting, severe headaches, dizziness and/or lightheadedness as such symptoms might constitute a serious health condition.)

Rhoads v. FDIC (D. Md. 1997) 956 F. Supp. 1239 (episodic periods of incapacity involving the inability to breathe freely due to asthma and concurrent migraine headaches were sufficient to preclude summary judgment as to whether serious health condition existed.)

10. Chronic Medical Conditions
Victorelli v. Shadyside Hospital (3rd Cir. 1997) 128 F.3d 184 (employers must consider an employee's chronic medical history when determining whether leave is for a serious health condition.)

11. Migraines
Hendry v. GTE North, Inc. (N.D. Ind. 1995) 896 F. Supp. 816, 827 (employee's absences which were attributed to migraine headaches raise a material issue as to whether she had a serious health condition.)8. Chronic Medical Conditions
Victorelli v. Shadyside Hospital (3rd Cir. 1997) 128 F.3d 184 (employers must consider an employee's chronic medical history when determining whether leave is for a serious health condition.)

Sims v. Alameda-Contra Costa Transit Dist. (N.D. Cal. 1998) 2 F. Supp. 2d 1253 (employee submitted sufficient information, in the form of calling in sick and submitting doctor's slips, to put employer on notice that his absence was due to a potentially FMLA-qualifying reason, and thus triggering employer's duty to inquire further into whether the leave qualified for FMLA protection.)

Mora v. Chem-Tronics, Inc. (S.D. Cal. 1998) 16 F. Supp. 2d 1192 (whether the notice an employee provides is practical both in terms of its timing and content will depend upon the facts and circumstances of each individual case. When an employee makes his or her employer aware that he or she suffers from a chronic illness, and subsequently calls in sick because of that illness, that notice may suffice for purposes of summary judgment. In this case, Mora brought suit against his employer, Chem-Tronics Inc., claiming it violated the FMLA when it charged him with an unexcused absence when he missed work to care for his terminally ill son and failed to inform his employer of the circumstances related to his absence until approximately five hours after his shift started. Chem-Tronics maintained that Mora had not notified the company of his need for leave in a timely manner according to its attendance policy, which required workers to call in 30 minutes before their shifts were scheduled to begin if they were going to be late or absent. The court ruled that the policy violated the FMLA because it was inflexible and failed to recognize that in FMLA leave situations it may not be possible to meet such requirements.)

Gibbs v. American Airlines, Inc. (1999) 74 Cal. App. 4th 1 (employee who called in sick to work for several days while taking antibiotics for apparent flu did not provide her employer with sufficient notice to make the employer aware that the employee needed CFRA-qualifying leave.)

Price v. City of Fort Wayne (7th Cir. 1997) 117 F.3d 1022 (whether employee gave notice of requested leave is a question of fact, linked to employee's illness and its manifestations.)

Barnett v. Revere Smelting & Refining Corp. (S.D.N.Y. 1999) (employee presented enough facts to have a trial regarding whether he gave adequate notice of the need for FMLA leave. The employee was hired to remove copper and nickel from molten metal. His duties were strenuous. Employee suffered from a heart condition that required medication. Due to this condition, the employee suffered chest pains and labored breathing. He was terminated after calling in sick on several days. The employee had conversations about his condition with a manager and a company nurse and telephone calls to the security guard on the mornings he called in sick. Such conduct may constitute sufficient notice.)

Ware v. Stahl Speciality Co. (W.D. Mo. 1998) Case No. 97-0436-CV-W-6 (Ware claimed his employer, Stahl Specialty Co., violated the FMLA when it terminated his employment for excessive absences, which the employee contended were caused by FMLA-qualifying migraines. However, the company argued that Ware failed to provide sufficient notice of his need for leave, stating that he could foresee continued episodes and could reasonably predict that he would need to miss work. The court found that although Ware was aware of his condition, he could not predict specific dates when he might miss work because of the migraines. Accordingly, the court refused to grant Stahl's request for summary judgment.)

Hendry v. GTE North, Inc. (N.D. Ind. 1995) 896 F. Supp. 816 (employee arguably complied with the notice requirement when she called her employer and reported herself ill with a migraine headache.)

Manuel v. Westlake Polymers Corp. (5th Cir. 1995) 66 F. 3d 758 (Manuel missed a significant number of days from work each year and had received a number of warnings from her employer regarding her absences. After the FMLA went into effect, Manuel was granted a day off for treatment of an ingrown toenail which became infected and resulted in her absence from work for nearly two months. During this time, she kept in contact with her supervisors, but at no time did she mention the FMLA or its protections. Upon returning to work, Manual received a "final warning/suspension letter" warning of possible termination. Two months later she left work ill and did not return for three days. She was fired for excessive absenteeism. The court held that it is the employee's responsibility to explain the reason for leave and it is then the employer's responsibility to determine if the need for leave is FMLA-qualifying. Employees seeking the leave need not mention the FMLA by name since the regulations place the responsibility of designating the FMLA-qualifying leave on the employer, based on information provided by the employee.)

Splangler v. Federal Home Loan Bank of Des Moines (8th Cir. 2002) Case No. 01-2476 (an employee with a long history of mental illness, a history well known to the employer, had given sufficient notice of her need for leave when she left a message for her supervisor that she would not be coming to work because of depression.)

Tate v. Farmland Industries Inc. (10th Cir. 2001) Case No. 99-6329 (the court reinstated the FMLA claims of an Oklahoma truck driver that had been dismissed by a lower court on the grounds that the employee failed to specifically allege in his complaint that he requested FMLA benefits from his employer. On appeal, the circuit court explained that employees have no obligation to ask for FMLA leave. Rather, it is the employer's job to decide whether requested leave is FMLA-qualifying.)

Lewis v. Holsum of Fort Wayne, Inc. (7th Cir. 2002) Case No. 01-1723 (an employer did not violate the FMLA when it discharged a worker who had failed to contact the employer or report to work for three days. The employer’s policy stipulated that a failure to report to work for three days without notifying the company of the reason for the failure to report would result in termination, unless notification was impossible.

Wilson v. Lemington Home for the Aged (W.D. Pa. 2001) Case No. 99-1893 (firing a nurse who suffered from clinical depression may have violated the FMLA. The employer told the court that it did not grant Wilson 12 weeks of statutory leave because she had neither specifically asked for FMLA leave, nor revealed her precise diagnosis when she said her doctor had prescribed a month off work. But the court found that once Wilson had requested medical leave, the employer was obligated to respond to the request in writing, explaining to the employee her rights and responsibilities under the act.)

1. Preliminary Time Worked Prior to Official Start Time May Be Counted To Determine FMLA Eligibility
Kosakow v. New Rochelle Radiology Associates (2nd Cir. 2001) Case No. 00-7392 (preliminary time an x-ray technologist spent on work matters prior to her official start time may be counted in determining whether she has met the minimum hours requirement for eligibility under the FMLA. The appellate court found that the lower court had erred in failing to consider such time on the basis that small amounts of preliminary time, in this case, 15 minutes each workday, are not compensable.)

2. Hours Paid, but Not Worked, Cannot Be Counted Toward FMLA Eligibility Requirement
Plumley v. Southern Container Inc. (D. Maine 2001) Case No. 00-140-P-C (an employee who was terminated from his job but reinstated by an arbitrator nearly seven months later could not count the time he spent off work toward the FMLA 1,250-hour eligibility standard. This case involved a matter of first impression namely, whether an employee who failed to work enough hours to qualify for FMLA leave, but who was prevented from doing so by a termination that was later reversed, could still establish his FMLA eligibility. The court held that the employee was not eligible for FMLA protection, even though he may have been paid, at the arbitrator’s behest, for 400 or more additional hours which he did not actually work.)

Failure To Tell Employees How Eligibility Computed Leaves Employer Liable for Improper Discharge
Bachelder v. America West Airlines (9th Cir. 2001) 259 F.3d 1112 (plaintiff contended defendant violated the FMLA by terminating her for poor attendance. In reversing summary judgment in favor of the employer, the Ninth Circuit rejected the employer’s argument that plaintiff was not eligible for FMLA leave because she had previously exhausted her twelve weeks of leave. The court held that: 1) an initial selection of a method for calculating the leave year must be an open selection, not a secret one, before it can be applied to an employee’s disadvantage; 2) adequate notice that the "rolling" method had been selected was not supplied by ambiguous handbook language which stated only that "employees are entitled to up to twelve calendar weeks of unpaid [FMLA] leave in any twelve month period;" and 3) because the employer had failed to fulfill its obligation to inform employees of its choice, the option most beneficial to the employee had to be used.)

Proof of Employee Eligibility Not Necessary For Each Instance of Intermittent Leave
Barron v. Runyon (4th Cir. 2000) Case No. 99-1027 (Barron was discharged by his employer, the U.S. Postal Service, for excessive absenteeism, and he brought suit claiming that his absences qualified for FMLA intermittent leave because he missed work to provide care for his seriously ill wife. The Postal Service argued that all but one absence was not covered by the leave law because Barron had not worked enough hours to be eligible for FMLA leave. However, the court noted that Barron's ineligibility was caused by his taking a single period of intermittent FMLA leave and all of his absences, except two, were covered by the leave law. An employee does not need to prove his FMLA eligibility for each instance of intermittent leave taken for a single qualifying reason, the court held.)

Worker Unable to Perform Essential Functions Not Entitled to Intermittent Leave Under FMLA
Hatchett v. Philander Smith College (8th Cir. 2001) Case No. 00-1693 (an employee who was not able to perform the essential functions of her position was not entitled to intermittent or reduced-schedule leave under the FMLA. The FMLA does not require an employer to allow workers to stay in a position that they cannot perform, and the statute is not a means "to force an employer to be directly involved in an employee's rehabilitation." Rather, the FMLA is designed to allow employees to be away from the job when necessary for family or medical reasons.)

Employee Denied Promotion for Use of Sick Leave May Have Claim Under FMLA
Banuskevich v. City of Nashua (D.N.H. 2001) Case No. Civ. 00-79-M (an employer that refused to promote an employee because of her use of sick leave may have violated the FMLA. When Banuskevich, who worked with the Nashua Police Department as a communications technician, applied for the job of parking enforcement specialist (PES), which paid about 20 percent more, the chief of police told her she would not be promoted because of her sick leave use. Nashua conceded that when denying the promotion, it had not distinguished between protected leave Banuskevich took for her migraine headaches and her son's asthma, which the city acknowledged were serious health conditions, and any unprotected leave she may have taken. Although the employer said it had also considered factors not related to sick leave when the promotion was denied, including two disciplinary reports, Banuskevich's 1998 driving test and a 1990 license suspension for speeding, Nashua also suggested that these factors alone would not have been sufficient to deprive Banuskevich of the promotion. Accordingly, the court refused to grant the city summary judgment, allowing the former employee's case to go to trial.)

Employer’s Refusal to Submit Medical Information Fatal to FMLA Case
Bailey v. Southwest Gas Company (9th Cir. 2002) Case No. 00-15796 (the employee worked for Southwest Gas, responding to customer complaints. Her job entailed driving to customers' homes at all hours of the day and night, turning gas on and off and providing other related services. On two successive nights in October 1995, Bailey worked the night shift and then several hours of overtime. Both times, she called the dispatcher around midnight to report that she could not stay awake and ended her shift without fulfilling all of her work orders. When questioned about the incidents, Bailey said she could not work her assigned overtime safely because medication she took made her sleepy. Her supervisor asked Bailey to get a letter from her doctor describing her condition and its effect on her overtime work. Bailey's doctor told Southwest that because of Bailey's "current medical problem" he had "placed her on medication whose side effect is sedation as well. She should only be working roughly an eight-hour shift each day." Despite repeated requests, Bailey refused to allow her doctor to give Southwest any more details about her condition or medication and was fired. The court affirmed the district court’s grant of summary judgment to the employer since Baily was fired only after repeatedly refusing to comply with a legitimate request from her employer so that it could evaluate her fitness to perform her job.)

Unlike Seven Other Appeals Courts, 9th Circuit Court Says State May Be Sued Under FMLA
Hibbs v. Department of Human Resources (9th Cir. 2002) Case No. 99-16321 (In upholding the right of a Nevada state employee to sue the state’s Department of Human Resources for violations of the FMLA, the 9th Circuit became the first federal circuit court of appeals to declare that a state agency may be vulnerable to an FMLA suit filed against it by its employee. Seven other federal circuit courts of appeals have held that states are generally protected from such suits by the 11th Amendment to the U.S. Constitution. The 9th Circuit has jurisdiction in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.)

Collective Bargaining Agreement Does Not Automatically Prevent Employees From Taking FMLA Claims to Court

Pichon v. Murphy (E.D. La. 2001) Case No. 00-2355 ( an agreement to arbitrate disputes arising between the union or an aggrieved employee and the employer does not strip an employee of his right to bring statutory claims in a federal forum, unless the employee has clearly and unmistakably waived the right to sue for violation of the FMLA in a court of law.)

Bonilla v. Small Assemblies Co. (N.D. Ill 2001) Case No. 99 C 6675 (a union cannot consent to a waiver of an employee’s statutory rights by signing a collective bargaining agreement.

Mora v. Chem-Tronics, Inc. (S.D. Cal. 1998) 16 F. Supp. 2d 1192 (to prove a prima facie case for retaliation in violation of the FMLA, the employee must show that: (1) the employee engaged in an activity protected by the FMLA; (2) the employer knew of this exercise of the employee's rights; (3) the employer thereafter took employment action adverse to the employee; and (4) there existed a causal connection between the protected activity and the adverse employment action.)

Nelson v. United Technologies (1999) 74 Cal. App. 4th 597 (CFRA violation can underlie claim for tortious termination in violation of public policy.)

Inclusion of FMLA Protected Absences In Employee's Discipline Record May Constitute Violation Of FMLA

Williams v. Shenango, Inc. (W.D. Pa. 1997) 986 F. Supp. 309 (the very inclusion of an FMLA-protected absence on a discipline record could lead reasonable persons to conclude that the employee was being retaliated against for exercising FMLA rights.)

George v. Associated Stationers (N.D. Ohio 1996) 932 F. Supp. 1012 (FMLA leave cannot be counted under "no fault" attendance policies since, pursuant to the FMLA regulations, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions. If an employee's last "occurrence" is due to a serious health condition within the FMLA, the employer may not terminate the employee based on its absenteeism policy.)

Proximity of FMLA Leave and Discharge May Be Sufficient To Show FMLA Retaliation

Maxwell v. GTE Wireless Service Corp. (N.D. Ohio Nov. 21, 2000) Case No.1:99CV541 (an employee who was fired the day after returning from leave to care for his ill son may have been protected by the FMLA and wrongfully discharged. Although the employer claimed the worker was fired for poor performance and provided documentation to support its statement, the court allowed the employee's claims to proceed to a jury trial because of the proximity of the termination to the protected leave.

Pregnant Employee Who Was Demoted Permitted To Take Case To Jury For Alleged Interference With FMLA Rights

Glunt v. GES Exposition Services, Inc. (S.D. Md. Dec. 11, 2000) Case No. AW-99-3013 (an employer that stripped a worker of some of her job duties and demoted her after she informed her supervisor that she was pregnant and intended to take leave under the FMLA may have violated the FMLA by interfering with the employee's right to take FMLA leave. Although the employer claimed that its actions were based on the employee's poor performance, the worker produced sufficient evidence that the company's claims were a pretext for discrimination. The "temporal proximity" between the employer's adverse employment action and the employee's exercise of her rights under the FMLA may reasonably support an inference that the action was taken in violation of the FMLA. In this case, the employee was demoted approximately one month before she was scheduled to take maternity leave and only two weeks before she took scheduled vacation leave leading into her maternity leave. Such close proximity between the demotion and the employee's exercise of her rights under the FMLA was sufficient to infer a causal connection.)

Employee Terminated After Taking Leave For Depression Entitled To Have Jury Consider His Case.

Haffner v. Bryan Cave LLP (S.D.N..Y. Aug. 15, 2000) Case No. 98 Civ. 0552 (a lawyer who took a leave of absence for depression raised enough questions of fact to have his FMLA case tried by a jury. The employee took leave for 12 weeks. He was discharged three days after he was ready to return to work. The court held that the employee raised questions of fact that could be submitted to a jury regarding whether the firm decided to discharge him before or after he took the medical leave of absence, and whether the reasons the firm gave for discharging the employee were pretextual.)

Employer's Elimination of Position May Have Been Retaliation for Taking Leave

Twyman v. Dilks (E.D. Pa. Sept. 8, 2000) Case No. 99-4378 (an employer may have violated the FMLA when it decided to terminate a worker while she was on protected leave. The court questioned the employer's motivations for dismissing the employee, stating that retaliation for taking FMLA leave could have been the cause of the discharge. The employee produced evidence linking her leave and discharge, including statements by company officials that they realized her position was no longer needed while she was on leave.)

FMLA Does Not Protect Employee Laid Off As Part Of A Reduction In Force Absent Evidence of Pretext

Rice v. Sunrise Express (7th Cir. 2000) Case No. 98-2195 (Rice was hired as a billing clerk by trucking company Sunrise Express in 1994. In the course of a reorganization that was completed in November 1995, Sunrise computerized its billing. This reduced the two billing clerks' workloads, so Sunrise decided to terminate Rice after the winter holidays. Around the time Sunrise planned to lay Rice off, the employee was hospitalized with an infected toe. She missed two weeks of work, and her doctor authorized her to work only half days for a third week. Rice's toe was amputated Feb. 14, and she was off work for four more weeks after that. On March 5, Rice called in to say she would be back to work on March 11, but on March 7, Sunrise called to tell her she was being laid off. The court held that the employee bears the burden of proving that she would not have been laid off if she was not on FMLA leave.)

O'Connor v. PCA Family Health Plan, Inc. (11th Cir. 2000) Case No. 98-5121 (In August 1995, O'Connor learned she was pregnant and asked for FMLA leave beginning April 22 and ending Aug. 1, 1996. In June 1996, PCA began a reduction in force. The first phase of the reduction in force occurred July 1 with the termination of 190 employees, of whom O'Connor was one. The court held that an employer may terminate an employee on FMLA leave if it would have done so even had she not been on FMLA leave.)

Leary v. Hobet Mining Inc. (S.D. W. Va. 1997) 981 F. Supp. 452 (Leary claimed her former employer, Hobet Mining Inc., violated the FMLA when it fired her while she was on maternity leave. Hobet maintained that Leary's discharge was part of a reduction in force and was unrelated to her FMLA leave. The court ruled that Leary could not show that Hobet's reasons for her discharge were pretextual and granted the employer's request for summary judgment because employees on FMLA leave have no greater right to reinstatement than if the employee had been continuously employed during the FMLA leave period.

Worker Awarded Earned Commissions For Employer's Retaliation During her FMLA Leave

Estes v. Meridian One Corp. (4th Cir. 2001) Case No. 99-2662 (an employee was entitled to receive commissions she earned while on FMLA leave. Because an employment agreement stated that the worker would receive commissions earned on sales to regular clients, the employer must pay them regardless of her leave status. According to FMLA regulations, any employer who violates the FMLA shall be liable to any eligible employee affected for damages equal to the amount of any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation. The commissions constituted "other compensation" under the act, the court stated. Estes provided evidence that she had earned the commissions represented by the jury's award. She supplied the court with a list of invoiced sales that were made while she was on leave, showing that the invoiced sales generated several thousand dollars in employee commissions. Estes stated that she earned these commissions because she had prepared for the sales. Estes also produced evidence to show that other employees had received commissions on their account lists regardless of whether they were on paid or unpaid leave.)

Post-FMLA Leave Job Change Violates Requirement That Employee Be Reinstated to 'Equivalent Position'

Cooper v. Olin Corp. (8th Cir. May 1, 2001) No. 00-1465 (an employee whose job responsibilities were changed substantially when she returned to work from FMLA leave had not been restored to an "equivalent position" within the meaning of the act despite the fact that her title, salary and benefits were the same as those she had before taking leave for depression. When assigning workers to an equivalent position upon their return from FMLA leave, the employer must consider the duties and functions employees held before their absences. In this case, the employee was not permitted to return to her position as a train operator even though she had been released to return to that position by her physician. Instead, the employee retained her job title and salary, but was assigned to answering telephones in the plant.)

Strickland v. Water Works and Sewer Bd. of Birmingham (11th Cir. 2001) Case No. 99-14103 (a worker's right to protection under the FMLA is not predicated on prior exhaustion of paid sick leave. An employee is entitled to FMLA protection regardless of whether he or she concurrently uses paid leave provided by an employer.)

Mora v. Chem-Tronics, Inc. (S.D. Cal. 1998) 16 F. Supp. 2d 1192 (an employee's DFEH claim stating that the employee believed he was fired because of his "family" and that he was told by his employer that it was "better for you and better for us because of son's illness" was sufficient to exhaust his administrative remedies, despite the fact specific boxes on the DFEH complaint for being denied "family leave" and for retaliation were not checked. The court came to this decision by observing that "the purpose of the administrative charge is to provide the basis for the DFEH to investigate the aggrieved employee's claims of discrimination. It is not intended as a limiting device." Therefore, "to determine whether the allegations of the complaint are beyond the scope of the charge, the...court should construe the charge with the utmost liberality, mindful of the fact that these charges are made by lay persons unschooled in the technicalities of formal pleading."

Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255 (court allowed plaintiff to amend her disability discrimination complaint to add a CFRA cause of action. Plaintiff alleged that her supervisor harassed her regarding absences due to diabetes and that the harassment caused stress which required more absences. Plaintiff was refused an alternative work schedule, was disciplined with a salary reduction and suspension, and was ultimately terminated after unsuccessfully requesting a return to a less stressful situation and a different supervisor.)