In Fisher v. Pohlman, Inc., No. 4:06CV01761 AGF, 2007 U.S. Dist. LEXIS 4725 (E.D.Mo. Jan. 23, 2007), the Court denied the employer's motion to dismiss plaintiff's FMLA interference claim. Cheryl Fisher worked for Pohlman as a Certified Mechanical Inspector from 1992 until her termination on September 17, 2004. In February 2003, Fisher asked for and was granted intermittent FMLA leave to care for her spouse with a serious health condition. Pohlman had a leave policy that assessed points for missed work and provided that an employee who accumulated 9 points was automatically fired. In 2003 and 2004 Fisher alleged that Pohlman assessed points to her for leave that was FMLA leave. Her attempts to have these points removed from her record were rebuffed. After an attempt to discuss the matter with the Director of Human Resources she was fired.
Pohlman moved to dismiss alleging that Fisher's interference claim filed because she did not assert that FMLA leave was denied. The court disagreed.
The Court found that Fisher's allegations, if proven, were sufficient to make out an FMLA interference claim. According to the court, "interference" includes not only refusing to authorize FMLA leave, but discouraging an employee from using such leave. The Court found that assessing absenteeism points and terminating an employee for use of FMLA leave could be construed to deter an employee from exercising her rights under the FMLA.
Comment: The FMLA's anti-interference provisions protect more than an employer's denial of FMLA leave. It also protects employees from adverse employment actions that may deter an employee from using FMLA leave. The Court determined that the assessment of absenteeism points that could (and in fact did) lead to discipline or removal arguably may deter an employee from exercising FMLA rights.