In Gentry v. Data Core, Inc., No. 06-2218-CM, 2006 U.S.Dist. LEXIS 68577 (D.Kan.Sept. 22, 2006) the employer was covered by the FMLA but had not selected a method for calculating the 12-month FMLA leave year. The employee had taken 12 weeks of FMLA leave ending November 15, 2004. She returned to work for approximately three months following her pregnancy. In February 2005, plaintiff requested approximately two weeks of medical leave for surgery to remove uterine tumors. The employer terminated the plaintiff’s employment shortly before the surgery. Ms. Gentry sued alleging that her employer interfered with her right to FMLA leave. The employer argued that plaintiff had already used all 12 weeks of FMLA leave for the affected 12-month period and, therefore, her FMLA interference claim must fail. The court disagreed. The employer’s argument, the court found, assumes that the relevant twelve month period depends on the dates of plaintiff’s prior leave. “The FMLA does not make this assumption.” The FMLA leaves the twelve-month period calculation to the discretion of the employer. If, however, the employer does not select a calculation method, the method to be employed is the one “that provides the most beneficial outcome for the employee…” 29 CFR 825.200. The court noted the absence of any claim that the employer had selected a method for calculating the twelve-month FMLA leave year. The court filled this void by selecting the calendar year method. Under that method the plaintiff could take twelve weeks of FMLA leave in 2004 and another 12 weeks in 2005. As a consequence, the court found that the plaintiff alleged facts that violate the FMLA and denied the employer’s motion for summary judgment.
Comment: Under Title I, the CAA, and the PEOAA, federal employers must elect between four methods to calculate the 12-month period in which the employee is entitled to receive up to 12 workweeks of FMLA leave. If, as in Gentry, a federal employer fails to select one of these four options the agency must use the option that provides the most beneficial outcome to the employee. Under Title II, the 12-month FMLA leave year period is fixed by regulation. 5 CFR 630.1203(d). Federal employers covered by Title I, the CAA, and the PEOAA should identify which of the four leave year options it has selected for calculation of the leave year and should publish that selection to employees. The issue is addressed in Chapter 10, Leave Amount and Scheduling, in A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation (Dewey Publications, Inc., 2003 & 2005 Supp.).