Stop me if you’ve heard this before: it’s the Monday after the Super Bowl, an employee with approved intermittent FMLA leave asks for a personal day, gets denied, switches to FMLA, and later finds himself terminated for “abuse.”
That is not a hypothetical. It is essentially what happened in a recent decision out of the Southern District of West Virginia, where a federal court refused to throw out an employee’s FMLA retaliation claim and sent the case to a jury.
TL;DR: An employer terminated an employee for alleged FMLA misuse based primarily on a single call-in conversation, without determining whether the leave was actually used for an FMLA-qualifying purpose. The court denied summary judgment on the retaliation claim, finding that a jury could conclude the employer’s decision-making process was “unworthy of credence.” When FMLA discipline rests on assumptions instead of investigation, summary judgment often disappears.
📄 Read the court’s decision here
How the leave request unfolded
The employee had an approved intermittent FMLA certification for chronic kidney stones. The medical certification permitted intermittent leave up to three times per month for one day per episode.
When the employee called in seeking time off, he initially asked for a personal day. That request was denied. During the same call, he then requested FMLA leave. In explaining the request, he mentioned that his children were starting a new school.
During an internal investigation, the employee later stated that his medical condition had begun to flare up, that he believed he needed to see a doctor, and that he ultimately took several days of medical leave. He also provided a doctor’s note confirming that he was under a physician’s care during that period.
Why the employer treated this as FMLA misuse
The employer focused almost entirely on the phone call. In its view, the reference to the employee’s children established that the leave was requested for an unapproved reason.
During the employer’s internal investigation, the company’s FMLA manager testified that the call itself made the misuse so clear that there was no need to determine whether the leave was actually used for FMLA protection or for a qualifying medical purpose.
After the investigation, the employer concluded the employee had misused FMLA leave and terminated his employment.
Why the court let the retaliation claim proceed
At this stage, the employee did not have to prove retaliation. He only had to show that a jury could reasonably question the employer’s explanation for the termination.
The employer said it fired the employee for misusing FMLA leave. But under settled law, that explanation can unravel if the employer failed to make a reasonably informed and considered decision before acting.
Here, the employer relied on the phone call alone and did not determine whether the leave was actually used for an FMLA-qualifying medical purpose. That mattered.
The employer also had other information at the time – an approved intermittent FMLA certification, the employee’s testimony during the internal investigative hearing that his condition had flared up, and a doctor’s note confirming treatment. A jury could reasonably conclude that disregarding that context rendered the employer’s decision-making process unworthy of credence.
That was enough to keep the retaliation claim alive.
Practical takeaways for employers and HR
This decision is not about excusing sloppy FMLA requests. It is about how employers evaluate suspected abuse.
- An employee voicemail can be dispositive if it clearly shows non-qualifying leave. But when it does not, employers still need to assess whether the leave was FMLA-qualifying.
- Imperfect phrasing does not defeat FMLA protection. Employees may articulate requests awkwardly or without using the letters F-M-L-A while still seeking covered leave.
- Assume your process will be scrutinized. When decision-makers testify that they did not need to determine whether leave was protected, summary judgment becomes difficult to sustain.
Bottom line
Accusing an employee of FMLA abuse requires more than a bad soundbite. It requires a defensible, informed process. Skipping that step does not just increase litigation risk – it hands a jury the final say.