In Sharer v. State of Oregon, No. 04-CV-1690-BR, 2007 U.S. Dist. LEXIS 24925 (D.Or. March 30, 2007), Sharer took leave due to stress caused by the arrest of her son. The employer repeatedly send her FMLA forms explaining that the reason for leave might be covered by the FMLA. Each time she received the FMLA forms Sharer responded that she was not requesting FMLA leave and that she would not be providing medical documentation. Sharer was terminated after she refused to return to work as directed. She sued, alleging that her discharge was in retaliation for asserting her rights under the FMLA. The Court disagreed.
The Defendant employer moved to dismiss the case, arguing that Sharer never availed herself of any protected rights under the FMLA and, in fact, explicitly refused to exercise her right to FMLA leave. The Court agreed, finding:
On this record, it is conclusively established that Sharer did not seek to enforce her rights under FMLA, and, in fact, she repeatedly refused to do so. As in Baily (v. Southwest Gas Co., 275 F.3d 1181 (9th Cir. 2002)), therefore, Sharer "may not argue [Defendants] interfered with the exercise of her rights by suggesting the FMLA might apply, providing however with information on it, and seeking a medical certification of her condition."
Comment: In Sharer and Baily, the employee refused to exercise their FMLA rights. Such refusal may allow an employee to save or stack FMLA leave on top of available paid or unpaid leave. However, the refusal to apply the FMLA to a given absence also exposes the employee to discipline for that absence. The mere fact that the employer was, in accordance with their FMLA responsibilities, alerting the employee of the potential availability of the protections of the FMLA will not be considered as evidence of FMLA interference or retaliation where the employee has unequivocally rejected application of the FMLA.