How did a plaintiff with no lawyer convince a federal appellate court that he had a viable FMLA claim?


The surprise will quickly disappear once I share the facts from this recent Third Circuit decision.

The plaintiff was a patient representative with a local hospital. On January 3, 2014, he reported to work amid a snowstorm. After his shift ended, the plaintiff slipped and fell while searching for a taxi-ride home. He was transported to the emergency room — the one at the hospital where he worked — and underwent back surgery the next day.

The plaintiff’s physician called the plaintiff’s supervisor to inform her that the plaintiff was likely to miss three months of work. The plaintiff made regular calls to his supervisor or a co-worker to provide treatment updates.

On January 28, 2014, the plaintiff’s doctor prepared a Family and Medical Leave Act certification to support a forthcoming request by the plaintiff for three months of leave. That same day, the hospital fired the plaintiff.

The plaintiff later asserted several claims in a subsequent lawsuit, and the lower court dismissed them all, including the plaintiff’s claim for FMLA interference.

On appeal, the primary issue to the Third Circuit Court of Appeals was whether the defendant was on notice of the employee’s prospective leave request and, by firing him, interfered with his attempted exercise of FMLA rights.

The lower court correctly determined that the plaintiff failed to present any claim that anyone interfered with an actual exercise of FMLA rights. However, it should have also determined whether the plaintiff could establish the closely related claim of interference with an attempted exercise of FMLA rights.

How does a plaintiff establish FMLA interference?

An FMLA interference claim has five elements:

  1. the plaintiff was an FMLA-defined employee;
  2. the defendant was an FMLA-defined employer;
  3. the plaintiff was entitled to FMLA leave;
  4. the plaintiff notified the defendant of an intent to take leave; and
  5. the plaintiff was entitled to FMLA benefits, and the defendant denied them.

The first two elements were not at issue. The plaintiff’s doctor prepared and submitted FMLA paperwork. So, the plaintiff satisfied the third element too.

Did the plaintiff notify the defendant of his intent to take leave? Well, maybe not in so many words — more on this in a bit — but he was admitted to the very emergency room in which he was employed. He also testified during his deposition that he regularly communicated with his employer about ongoing rehabilitation.

Lastly, it would appear that the defendant’s termination decision deprived the plaintiff of the FMLA benefits (12 weeks of leave) he was entitled to and attempted to take.

Does this mean that the plaintiff will win at trial? No. Indeed, a plaintiff must prove the existence of an FMLA violation and resulting damages, i.e., that he lost his job and suffered any other compensable injuries because of his attempted exercise of FMLA rights.

But there is another more important lesson. Employees seeking FMLA leave need not mention the statute or the letters F-M-L-A. They have to say enough to put the employer on notice of the need for leave.

It sounds to me like a manager may have dropped the ball on communicating the employee updates to HR, which may have then triggered a better response to what seemingly was an FMLA request.

So make sure to train your managers on how to identify and “triage” medically-related leaves of absence.

“Doing What’s Right – Not Just What’s Legal”
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