Debbie DeGruy-Gordon advised her employer, the Railroad Retirement Board, by e-mail that she had flown to Chicago to care for her Aunt Edna who was ill. She was subsequently granted a combination of LWOP and administrative leave beginning April 21 and continuing through Friday, June 6, 2008. On Monday, June 9, DeGruy-Gordon requested FMLA leave to care for her aunt. The employer denied her request, noting that she was not entitled to FMLA leave to care for her aunt. DeGruy-Gordan resigned. She subsequently appealed her resignation alleging violation of the FMLA.
The Board initially noted that it lacked jurisdiction over the appeal. DeGruy-Gordan resigned because her request for FMLA leave was denied. She would only be entitled to FMLA leave if her aunt stood in loco parentis to the DeGruy-Gordan when she was a "son or daughter" within the meaning of the FMLA. The record, the Board found, failed to establish that Aunt Edna stood "in loco parentis" to DuGruy-Gordan. On the contrary, the evidence indicated that her aunt helped her and her three daughters after she had become divorced. While it is understandable that appellant felt a great deal of pressure to stay and take care of her aunt, DeGruy-Gordan failed to make a nonfrivilous claim that she was entitled to FMLA leave to care for her aunt. Nor was the resignation involuntary because appellant wa faced with the unpleasant alternative of resigning or being terminated does not render the decision involuntary.
Comment: The Board reached the correct result: absent an in loco parentis relationship, an eligible employee is not entitled to FMLA leave to care for a seriously ill aunt. Curiously, in support of its decision, the Board cited to the statutory and regulatory sections of Title I of the FMLA. The Board did not explain why this federal employee was covered by Title I of the FMLA rather than Title II. It is very likely that the Board, yet again, has failed to comprehend that there are several versions of the FMLA that apply to different segments of the federal workforce. Luckily, in this case, the definition of covered family members is the same under Titles I and II for purposes of serious health condition leave. Still, the Board needs to raise the level of their game (i.e., pick the bar up off the ground) in terms of matching the correct variant of the FMLA to the employee-appellant.