Hacking Through the Thicket of Intermittent FMLA Leave.
Temple University scored a victory in federal court this month by obtaining summary judgment against a former manager who claimed he was retaliated against for exercising his right to intermittent leave under the federal Family and Medical Leave Act (FMLA).
According to Judge Timothy Rice’s decision on April 7 in Regan v. Temple Univ. (E.D. Pa.), plaintiff Keith Regan, an AV/IT manager at Temple, had exercised his right to intermittent FMLA leave for years to care for his daughter, who has special needs. Temple fired Regan due to multiple attendance and performance issues, which Regan challenged claiming that the allegations against him were pretextual cover-ups for FMLA interference and retaliation.
The court dismissed the interference claim, noting that Regan failed to identify any instance in which his request for FMLA leave had been denied. Temple’s prolonged accommodation of Regan’s FMLA absences was well-documented and undisputed.
As to retaliation, the decision outlines the frequent back and forth between Regan, his supervisors, and Temple’s human resources personnel as to both his FMLA leave and his performance issues. The decision notes – and this is a best practice for any employer – that Temple required employees using intermittent FMLA to provide timely written notice for each period of leave, and placed limits on the amount of leave taken, consistent with the FMLA.
When Regan repeatedly failed to show up for “the busy morning hours” of a conference at Temple – despite agreeing beforehand that he would be there to cover AV and IT issues – he was suspended, then terminated. Regan cited evidence of ill will toward him for taking FMLA leave, including his direct supervisor commenting that he was “milking” FMLA time. But that was not enough for Judge Rice, who noted that Regan “claimed he was taking FMLA leave during that time period [the early morning conference hours] only after his absence was criticized.” Such an after-the-fact claim of FMLA protection, in violation of Temple’s FMLA policy, did not create an issue of pretext.
The case highlights the importance of employers having specific and clear rules, communicated in writing to employees, as to the use of FMLA leave, especially intermittent leave, including the employee’s duty to provide advance written notice to the employer when feasible (some employers even require daily check-ins by employees during leave time). When employees fail to give timely notice of FMLA leave, they are not insulated from generally applicable disciplinary rules.