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Pre-Eligibility Request Under FMLA May Constitute Protected Activity

Published by on February 22, 2012

The U.S. Court of Appeals for the Eleventh Circuit has now held that the Family and Medical Leave Act (“FMLA”) protects an employee from retaliation or interference because of a pre-eligibility request for leave.  More after the break. Kathryn Pereda filed a lawsuit under the FMLA alleging interference and retaliation by Brookdale Senior Living Communities.  […]

The U.S. Court of Appeals for the Eleventh Circuit has now held that the Family and Medical Leave Act (“FMLA”) protects an employee from retaliation or interference because of a pre-eligibility request for leave.  More after the break.

Kathryn Pereda filed a lawsuit under the FMLA alleging interference and retaliation by Brookdale Senior Living Communities.  Pereda began working at Brookdale on October 5, 2008.  In June 2009, Pereda informed Brookdale that she was pregnant and would be requesting FMLA leave subsequent to the birth of her child in November 2009.  Brookdale terminated Pereda’s employment in September 2009. 

Pereda alleged that prior to informing Brookdale about her impending FMLA leave, she was considered a top employee.  After learning of her pregnancy, however, Brookdale began to pressure Pereda – she was placed on performance improvement plans with unrealistic goals, and she received write-ups for taking leave to visit the doctor.  Finally, Pereda was terminated after using allegedly authorized sick, personal, and vacation leave for bed rest. 

The district court dismissed Pereda’s complaint for failure to state a claim.  It concluded that because Pereda was not eligible for FMLA leave at the time she requested it, she could not have engaged in protected activity and Brookdale could not have retaliated against her.  An employee becomes eligible for FMLA leave if she has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months before the date the FMLA leave is to begin. 

The Eleventh Circuit disagreed with the district court and held that if the law did not protect against pre-eligibility interference, a loophole would be created in the FMLA where an employer could terminate an employee before she ever became eligible for leave. 

First, the Eleventh Circuit held that because the FMLA requires notice in advance of taking leave, employees are protected from interference prior to a “triggering event” (i.e. the birth of a child).  While the court agreed that employees may not take FMLA leave in advance of their eligibility, “a pre-eligible employee has a cause of action if an employer terminates her in order to avoid having to accommodate that employee with rightful FMLA leave once that employee becomes eligible.” 

Second, the court found that Pereda had also stated a cause of action for retaliation under the FMLA.  Pereda had engaged in statutorily protected activity by discussing her leave with Brookdale.  Brookdale argued that the court’s holding would create a slippery slope – an employee could work eight hours and then request foreseeable FMLA leave.  The court disagreed because an employee could still be terminated for legitimate reasons, such as poor performance or misconduct. 

To read the Eleventh Circuit’s full opinion, click here.

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