In Pirant v. U.S. Postal Service, No. 07-1055, 2008 U.S. App. LEXIS 18912 (7th Cir. Sept. 4, 2008), the employee was 12 minutes shy of meeting the 1250-hour eligibility requirement for FMLA leave. The employee argued that she would have met the 1250-hour requirement but for a two-hour wrongful suspension (she was directed by a supervisor to clock out early one day). As support, she cited the decision of the Sixth Circuit in Ricco v. Potter, 377 F.3d 599 (6th Cir. 2004). In that case, the Postal employee who was terminated, then grieved the termination and won reinstatement and a make-whole order from an arbitrator. The Sixth Circuit held that the hours-of-service calculation for purposes of determining employee FMLA eligibility should include the "hours" the employee likely would have worked but for her unlawful termination.
The Seventh Circuit distinguished Ricco. In Pirant, notwithstanding notice of her right to grieve the clock-out incident, she did not do so in a timely manner. Her post-termination grievance of the clock-out incident was dismissed as untimely, a determination which she did not challenge. The Seventh Circuit found that, by failing to pursue her formal challenge to the suspension, Pirant accepted that she was not entitled to compensation or FMLA credit for the lost 2 hours. The court found that, standing alone, Pirant's unsubstantiated subjective belief that her two-hour suspension was wrongful was not enough to have those hours credited for purposes FMLA eligibility. The Seventh Circuit affirmed the dismissal of her FMLA case because Pirant did not meet the 1250-hour eligibility requirement.
Comment: The decision effectively precludes an employee from contesting the legitimacy of a suspension or termination that adversely effects their FMLA eligibility for the first time as part of their FMLA lawsuit, at least where the employee had other available avenues of redress that were either not used at all, or were not exhausted. The decision leaves open whether a non-bargaining unit employee without an internal grievance process would be allowed to challenge wrongful suspensions or terminations that adversely affected eligibility for the first time as part of the employee's FMLA lawsuit. Employers without an internal grievance process might cite Pirant while arguing that the employee could have filed a lawsuit but did not (or did not pursue it to a successful conclusion).
Employers, of course, may have an internal grievance process outside of a collective bargaining agreement. In that case, the employee who is shy of meeting the 1250-hour eligibility would also have to use the internal grievance process to challenge that decision. In that case, Pirant should apply.
The implication of Pirant is that an employee must both exhaust any internal grievance process regarding an alleged wrongful suspension or termination and must be successful in that forum by having the action reversed.
The decision has received some notoriety for sustaining the dismissal of an FMLA claim because the employee missed the 1250-hour eligibility requirement by 12 minutes. I guess folks are always fascinated by cases that fall just short of an arbitrarily drawn standard.