In Penson v. Autozone, Inc., No. 1:06CV140, 2006 U.S. Dist. LEXIS 78820 (N.D.Ohio Oct. 30, 2006), the court awarded summary judgment to the employer dismissing the employee's FMLA claim because the evidence demonstrated that Autozone's decision to terminate the plaintiff occurred before he requested leave. Therefore, he was not an eligible employee under the FMLA at the time he requested leave, and was not entitled to the benefits and protections of the Act.
Comment: This situation frequently arises in FMLA retaliation claims. The employee is in trouble and asks for FMLA leave while disciplinary action is in process but has not been issued. The employer terminates the employee shortly thereafter. The employee sues claiming that the termination was in retaliation for the request for FMLA leave. The employee points to the close temporal proximity of the request for leave and the termination as evidence of a casual connection. Courts have generally found that employers did not violate the FMLA where it can be established that the decision to terminate the employee (for reasons not protected by the FMLA) preceded the employee's FMLA leave request. While temporal proximity of protected activity (a request for FMLA leave) to an adverse action may be evidence of impermissible retaliation, most courts do not consider such evidence to be conclusive on the issue. Rather, courts take all facts into account to determine if the FMLA has been violated. Where the decision to terminate precedes the FMLA leave request, courts generally find that the termination decision was not caused by the request and, therefore, was not impermissible retaliation for exercising FMLA rights. The FMLA, you will remember, does not protect employees from discipline they would have otherwise received had they not exercised any FMLA rights.