By Erica Shelley Nelson and Jordan L. Jones
In Mendel v. City of Gibraltar, the U.S. District Court for the Eastern District of Michigan granted summary judgment to the City of Gibraltar for a police dispatcher’s Family Medical Leave Act (FMLA) interference claim. The Plaintiff alleged that he was illegally terminated while on statutory leave. The Court held that the Plaintiff would not have been able to return to work after exhausting his 12 weeks of FMLA leave and therefore he did not have a valid FMLA interference claim.
The Plaintiff began working for the Defendant in the fall of 2004 as a police dispatcher. In 2008, he began experiencing abdominal pain and subsequently underwent surgery. After the surgery, the Plaintiff continued to experience pain which prevented him from working at various times of the year. The Plaintiff was unable to work his January, 2009, shifts and was subsequently taken off the work schedule. The Plaintiff then met with the police chief and advised him that he would return to work during the week of February 7, 2009. The Plaintiff did not end up working February 7th, 8th, 11th, 12th, or 13th due to pain and the Defendant sent a letter to the Plaintiff stating that if “a doctor’s note was not provided by . . . [February 16, 2009,] voluntary termination would be presumed.”
The Plaintiff did not provide a doctor’s note until February 23, 2009, and he was terminated. The Plaintiff then filed an FMLA interference claim against the Defendant.
The Court noted that “[u]nder the FMLA, a qualifying employee ‘shall be entitled to a total of 12 workweeks of leave during any 12-month period.” The Court further noted that under the FMLA, “[o]nce the 12-week period ends, however, employees who remain ‘unable to perform an essential function of the position because of a physical or mental condition . . . have no right to restoration to another position under the FMLA.”
The Court also stated that:
To establish an “inference claim” under the FMLA, a [P]laintiff must prove that (1) he was an eligible employee, (2) [D]efendant was a covered employer, (3) he was entitled to leave under the FMLA, (4) he gave his employer notice of intent to take leave, and (5) the employer denied FMLA benefits or interfered with FMLA rights.
The Court stated that the “only criteria in dispute here are prongs four and five.”
The Plaintiff contended that “he could not return to work until June 1, 2009, which far exceeds twelve calendar weeks . . . because he was a part-time employee, worked a flex shift and was fired, his FMLA . . . . [was tolled].”
In response, the Defendant argued that an employee’s termination does not toll FMLA leave and therefore the Plaintiff’s claim fails because he would not have been able to return to work within the 12 week period.
The Court held that the Plaintiff’s “argument . . . that after termination the FMLA-leave clock stops for part-time employees, but not for full-time employee” goes against prior precedent “which says that terminating an employee does not toll FMLA weeks.” In addition, the Court noted that the Plaintiff’s claim would “be dismissed even if his FMLA-leave started from the date of termination. More than twelve weeks lapsed between . . . termination and recovery. This time frame alone could defeat his claim.”
The Court next evaluated “how . . . FMLA-leave weeks following termination [are] calculated for part-time employees who work flex schedules.” The Court found that the “FMLA requires . . . [it] to look at the weekly average of hours . . . [the Plaintiff] worked in 2008 to determine how the fifteen weeks between the . . . [Plaintiff’s] termination and recovery are calculated.” The Court found that the Plaintiff had “worked a full-time schedule . . . [in 2008 at 35 hours a week and therefore] the Court must assume that . . . [the Plaintiff] worked a full-time schedule for calculation purposes.” The Court held that the Plaintiff’s “FMLA-leave would have expired on May 12, 2009, more than three weeks before he could have returned to work.”
The Court held that there was not a valid FMLA interference claim because he would have not been able to return to work in the 12 week FMLA period and granted summary judgment to the Defendant.
This case highlights the importance of pleading as many cognizable claims as possible in the complaint. The police dispatcher here may have had a viable Americans with Disabilities Act (ADA) claim, but, for reasons not explained in the decision, he did not pursue that claim. Under the ADA, to prove disability discrimination, the Plaintiff need only show he is disabled person within the meaning of the ADA; (2) he is a qualified individual, meaning he can perform the essential functions of his job; and (3) he was terminated because of his disability. Based on the facts, there is certainly a possibility that the Plaintiff could have survived summary judgment on an ADA claim. While the case was likely decided correctly as to Plaintiff’s FMLA-interference claim, it is a very unfortunate result for him.
