In Cole v. Powell, No. 07-1829 (RJL), 2009 U.S. Dist. LEXIS 22087 (D.D.C. March 19, 2009), the court dismissed the employee's FMLA claims as lacking in merit. In that case, Janie Cole was employed in the federal civil service as a GS-9 staffing assistant by the National Gallery of Art. Pursuant to an EEO settlement, Cole would be promoted to a GS-11 position after 90 days if she demonstrated improved and sustained dependability regarding attendance, including the advance scheduling of leave. Cole had to schedule leave 24 hours in advance and provide documentation justifying any unscheduled leave.
Cole incurred three unscheduled absences during the 90-day period. As a result, the Gallery denied Cole the promotion. Cole sued, alleging that the settlement agreement was unenforceable because it violated the FMLA. Specifically, she alleged that the 24-hour notice and medical documentation requirements violated the FMLA. The court disagreed. Relying on 29 CFR 825.303(a) and 29 USC 2613, the court found that the 24-hour advance notice and medical documentation requirements were permitted by the FMLA. As such, the court concluded that Cole had failed to demonstrate that the settlement agreement interfered with her FMLA rights.
Comment: The decision reaches the correct result for the wrong reason. Federal civil service employees are covered by Title II of the FMLA (the OPM regulations), not Title I (the DOL FMLA regulations). The court's reliance on Title I (29 USC 2613) and the DOL FMLA regulations (29 CFR 825.303(a)) was incorrect. The court should have simply dismissed the case for failure to state a claim because federal civil service employees, unlike their Title I counterparts, do not have the right to file a federal civil suit to enforce their Title II FMLA rights.