An employer that discourages an employee from taking FMLA leave may be liable for interfering with an employee's FLAM rights even though the employer ultimately grants all FMLA leave requested.
The issue was recently addressed in Jennings v. Ford Motor Co., No. 1:06-cv-0877-SEB-TAB, 2008 U.S. Dist. Lexis 62761 (S.D. Ind. Aug. 15, 2008). For purposes of summary judgment, the court accepted that Ford managers had discouraged employees by denying overtime to any employee who took time off during the week, including time off for FMLA leave.
Ford moved for summary judgment, arguing that Jennings could not establish an unlawful interference claim because he was not denied any FMLA benefits. Denial of FMLA benefits is one of the five factors that an employee must prove to establish an FMLA interference claim. Ford's argument was based on the language of the Seventh Circuit in Burnett v. LFW, Inc.,472 F.3d 471, 477 (7th Cir. 2006). In that case, the Seventh Circuit set forth the following five factors an employee must establish to prevail on an FMLA interference claim:
(1) he was eligible for the FMLA's protections, (2) his employer was covered by the FMLA, (3) he was entitled to leave under the FMLA, (4) he provided sufficient notice of his intent to take leave, and (5) his employer denied him FMLA benefits to which he was entitled.
Ford argued that it should be awarded summary judgment because Jennings could not establish the fifth element: that he was denied FMLA benefits. The court distinguished Burnett because the fifth element was not at issue in the case. Instead, the court followed the lead of the Sixth Circuit in Hoge v. Honda of Am. Mfg., 384 F.3d 238, 244 (6th Cir. 2004), and modified the fifth element to read: the employer denied the employee FMLA benefits or interfered with FMLA rights to which the employee was entitled. Applying that standard, the court found sufficient evidence in the record to deny summary judgment to Ford.
Comment: The decision preserves the prohibition on discouraging employees from exercising FMLA rights in 825.220(b). The decision allows employees (with sufficient supporting facts) to take FMLA interference claims past summary judgment in situations where the employer's efforts to discourage FMLA usage were either successful (denied FMLA benefits) or unsuccessful (granted FMLA benefits, but discouraged in the process). Given the time and legal expenses involved, a case that gets past summary judgment becomes significantly more expensive for the employer to defend.
The case is relevant to civil service employees covered by Title II. OPM did not adopt a regulation similar to 825.220(b) defining "interference" with FMLA rights to include discouraging an employee from taking FMLA leave. However, Title II itself broadly prohibits direct or indirect acts of intimidation, threats, or coercion for the purpose of interfering with a civil service employee's FMLA rights. See 5 USC 6385.