The FMLA Blog

"Buyer's Remorse" Insufficient to Establish Interference Claim Where Employee Knowingly Elected Not to Exercise FMLA Rights

In Righi v. SMC Corp. of America, No. 07-cv-1064, 2009 U.S. Dist. LEXIS 15429 (C.D. Ill. Feb. 27, 2009), the employee requested leave to care for his mother, a diabetic who was hospitalized after accidentally took an overdose of mediation. At the time, SMC was aware that the employee was caring for his mother due to her medical condition.  SMC had approved leave for this purpose in the past. As a result of his mother's overdose, the Righi requested "a couple of days off" to make medical care arrangements for his mother. In the e-mail requesting leave, Righi mentioned that, although he could apply for FMLA leave, he did not want to do so at this time.  Instead, he asked for vacation.  On receipt of the e-mail, SMC made several unsuccessful attempts to contact Righi.  Righi admitted later that he turned off his cell phone for a week.  Righi was subsequently terminated for violating SMC's call-in policy.  Righi sued alleging interference with the FMLA.

Righi argued that his e-mail message referencing the FMLA was sufficient to place SMC on notice that he was, in fact, asking that his absence be covered by the FMLA.  In rejecting the argument and awarding summary judgment to SMC, the Court found that the burden of inquiry never shifted to SMC to determine if the absence might be covered by the FMLA. The Court found that SMC was not legally obligated to ignore the employee's own statement that he was not interested in applying for approved FMLA leave to cover his absence.  Nor was SMC required to persuade an employee to take FMLA leave where the employee has indicated they do not wish to.

Comment:  Employees who seek FMLA protections after they have knowingly elected not to exercise their FMLA rights in order to preserve the ability to use FMLA leave in the future have not fared well in the courts. To get over this high hurdle, employees would need to show that, for example, the employer failed to satisfy its notice requirements, or that the employer otherwise misled the employee regarding FMLA rights and responsibilities. 

The case is a reminder that an employee who decides to use non-FMLA leave in order to preserve it for future use risks discipline.  

Notice "As Soon As Practicable" Triggered Based on Possibilty of the Need for FMLA Leave

David Valdivia, an inbound electrician for BNSF, suffered from migraine headaches for which he had been granted intermittent FMLA leave in the past.  Valdivia was prescribed Maxalt to treat his migraines.  One of the side-effects of Maxalt caused Valdivia to occasionally fall into a deep sleep for up to 27 hours.  When he takes Maxalt on a day he is scheduled to work Valdivia would set his alarm clock to wake him, which did not always work.  If family members were home, they would also wake him up in time to make his shift.  To avoid AWOL, BNSF policy required Valdivia to either report to duty on time or call-in and request FMLA before the start of his shift.

After working the midnight shift on August 19, Valdivia felt the onset of a migraine on his way home from work.  He took Maxalt at 9 am, and set his alarm for 11 pm in order to make the midnight shift.  He took Maxalt again at 2:00 pm.  Valdivia not only slept through his alarm, but through his entire shift (18 hours).  When he awoke he called BNSF, explained what happened, and requested FMLA leave.  Long story short, BNSF denied the request, charged Valdivia with AWOL, and issued him a 20-day suspension.  Valdivia sued alleging that BNSF interfered with his FMLA rights. 

There was no question that Valdivia suffered from an FMLA-covered serious health condition (migraines) generally, and on the day in question.  Nor was there any question that the onset of the migraine was not foreseeable.  The case turned on whether Valdivia gave BNSF notice of his unforeseeable need for FMLA leave "as soon as practicable under the facts and circumstances of the case," as required by 29 CFR 825.303(a) of the DOL FMLA regulations.  The court found that Valdivia did not notify BNSF as soon as practicable of his need for FMLA leave.

Based on circumstantial evidence, the Court found that Valdivia knew he would need FMLA leave as of 2 pm, when he took his second dose of Maxalt.  The Court also found that it was possible and practicable for him to notify BNSF of his need for leave at that time.  The Court noted that  Valdivia knew at that time he took his second dose that just one dose of Maxalt could cause him to sleep through his alarm.  Notwithstanding that knowledge, he made no arrangement for family members to awaken him after he took his second dose.  The court observed:

At trial, plaintiff admitted that if he had called in to request leave, then recovered in time to work, he could have reported to work as usual with no adverse consequences.  Plaintiff's decision to play the odds and wait until the last minute to re-assess his situation did not postpone his obligation to give notice as soon as practicable and possible under the FMLA.

Valdivia admitted that it was not impossible or impracticable for him to give notice at 2 pm.  He argued that BNSF policy only required him to call before the beginning of the shift.  The Court dismissed various hypothetical scenarios offed by Valdivia demonstrating that he could have called in after 2 pm but before his shift.  In so doing, the court rejected the argument that BNSF's more generous-call-in policy exonerated Valdivia's duty under the FMLA to give notice as soon as practicable.  The court concluded:

If the Court were to allow plaintiff to use BNSF policy as a sword in FMLA interference litigation, it could unintentionally discourage the very kind of dialog and communication which the FMLA is intended to promote.

Comment:  The decision illustrates two points.  The first is how the court interpreted "as soon as practicable under the facts and circumstances of the case."  The Court focused on when, in its estimation, Valdivia should have known that he would need FMLA leave.  In so doing, the Court fixed that awareness based on the possibility that he might need FMLA leave because, in the past, he occasionally slept through his alarm when taking just one dose of Maxalt.  Setting the point in time when an employee should realize they may need leave based on the mere possibility of that need is a fairly low standard.  

Second, the court's dictum that BNSF's more generous call-in policy does not supersede the FMLA's "as-soon as practicable" notice requirement is at odds with the FMLA.  The observation is dictum because Valdivia, in fact, did not notify BNSF prior to the start of his shift that he may need FMLA leave.  The court did not need to address what might have happened had Valdivia not slept through his entire shift. 

Moreover, court's dictum is clearly wrong.  The FMLA allows an employer to provide greater leave benefits than the minimum required by the FMLA.  29 CFR 825.700.  Allowing an employee a greater amount of time to request leave than the minimum required by the FMLA is a form of greater leave benefit.  The court's observation runs contrary to the plain language of the DOL regulations.      

Valdivida v. BNSF Railway Co., No. 07-2467-KHV, 2008 U.S. Dist. LEXIS 10828 (D. Kan. Sept. 30, 2008)        

Crying Cited as Evidence that Request for Leave May Be Covered by the FMLA

Susan and Paul Murphy, husband and wife for 22 years, were employed as truck drivers by Watkins Motor Lines, which was subsequently purchased by FedEx.  Due to a serious illness, Paul went on approved FMLA leave.  His wife went on FMLA leave a few weeks later to care for Paul.  Paul died unexpectedly a week later.  Susan informed FedEx of Paul's death that same day.  She was crying when she called.  She remained on leave.  A few days later Susan asked for an additional 30 days of leave "to take care of things."  FedEx approved the leave.  FedEx management testified that Susan was often crying and seemed "very sad" during these two discussions.  Susan understood that she was approved for an additional 30 days of FMLA leave.  FedEx subsequently informed Susan that she had been separated from the company prior to the expiration of the 30-day period.          

Susan sued alleging that FedEx violated her FMLA rights by terminating her while she was on approved FMLA leave.  FedEx defended by arguing that Susan was on bereavement leave, not FMLA leave, at the time of her termination.  For purposes of summary judgment, the court disagreed with FedEx.  According to the Court:

The Court believes that Plaintiff's employer's knowledge of Plaintiff's husband's death, the fact that she was crying, and that she asked for additional time to "take care of things" could be sufficient to put her employer on notice that she was asking for FMLA leave.  If the employer had questions regarding whether Plaintiff was attempting to continue her FMLA based upon her own illness, it should have followed up with Plaintiff.

Comment:  The decision is not as far fetched as it might initially seem.  It is very clear that an employee is not entitled to FMLA leave "to care for" a covered family member once that family member passes away.  The employee would, however, be still entitled to FMLA leave due to their own serious health condition, or to care for another covered family member with a serious health condition (e.g., emotional distress resulting from the death of the original covered family member, assuming the condition meets the definition of a serious health condition). 

In Murphy, Susan requested leave for herself.  The request was sufficient to shift the burden of inquiry to the employer because FedEx knew (1) she was asking for an extension of her approved FMLA leave; (2) the extension was for a significant period of time; and (3) Susan was demonstrably upset by the death of her spouse of 22 years.  

Where an eligible employee requests leave due to a death in the family employer's should proceed with caution.  Courts and jury's are likely to be very sympathetic to the employee.  Employer's might want to think twice before jumping to the conclusion that the employee is only requesting bereavement leave outside of the protections of the FMLA.  Employer's would be well advised to make additional inquiries to determine whether the leave is FMLA-qualifying.   

 Murphy v. FedEX National LTL, Inc. No. 4:07CV01247 JCH, 2008 U.S. Dist. LEXIS 79147 (E.D.Mo. Oct. 8, 2008). 

        

Doctor's Summary Note Recommending 2 Weeks of Leave for "Medical Complications" Sufficient to Alert Employer of FMLA Possibilty

In Krenzke v. Alexandria Motor Cars, Inc., No. 07-1561, 2008 U.S. App. LEXIS 17654 (4th Cir. Aug. 15, 2008), the court found that a doctor's note faxed to the employer stating, "I recommend 2 weeks of no work due to medical complications and illness" was sufficient to alert the employer of the possibility that the leave may be covered by the FMLA.  The court observed that, "[a]lthough the note was summary in nature, it was received from a medical doctor and stated that an extended leave was needed for medical reasons."  The burden of inquiry shifted to the employer to gather additional information and determine if the leave was actually covered by the FMLA.  The employer did not inquire further.  As such, the court concluded that Krenzke provided sufficient notice that she was entitled to leave under the FMLA. 

Comment: The decision adds to the long line of cases that have addressed the tipping point where the employee has provided enough, albeit incomplete, information suggesting the possibility that the FMLA may be involved to shift the burden of inquiry to the employer.  Some courts have required that the reason articulated for leave come pretty close to the criteria for one of the serious health condition definitions.  Others, like the Fourth Circuit here, have shifted the burden of inquiry based on far less specific information.  Employers, of course, need to figure out whether the standard in their Circuit is horseshoes (requiring fairly specific information) or hand grenades (requiring less employee specificity) before the burden of inquiry shifts to them.  

In the Fourth Circuit, the source of an otherwise vague leave notice, a doctor rather than an employee, would appear to lower the bar for purposes of suggesting the possibility of FMLA leave and shifting the burden of inquiry to the employer.  I say this because there are cases out there where employees have asked for lengthy periods of leave due to "illness," "sickness," and the like and courts have not shifted the burden of inquiry.   

To play it safe, employers who receive notice of the need for lengthy employee leave via doctor's notes should consider making further inquiries to determine if the FMLA may be implicated.    

Two-Year Gap Between Last Use of FMLA Leave And Current Request Insufficient to Break Linkage for Employee Notice Purposes

In Fritz v. Phillips Service Industries, Inc. No. 06-11149, 2008 U.S. Dist. LEXIS 38266 (E.D. Mich. May 12, 2008), the employee requested leave on May 2, 2005, due to right knee pain.  Frtiz called and reported that he was unable to work due to his "knee condition."  In 2003, PSI had granted Fritz FMLA leave to undergo surgery on his right knee.  PSI was also aware that Fritz was scheduled to undergo another surgery on his right knee on May 24, 2005. 

On these facts, the court found that PSI had clear notice that Fritz had a serious health condition related to his right knee sufficient to shift the burden of inquiry to the employer to determine whether his May 2, 2005, request may be covered by the FMLA.  PSI did not inquire further, but immediately fired Fritz.  The employer had argued, unsuccessfully, that it was unreasonable to conclude that PSI should have known that the two events, the 2003 FMLA qualifying surgery and the May 2-3, 2005, were related.  The court denied PSI's summary judgment motion.

Comment:  The adequacy of an employee's request for leave that may be FMLA-qualifying is judged in light of an employer's institutional memory of the employee's past FMLA usage.  Where an employee links their otherwise innocuous current request for leave with a previously recognized FMLA condition, the employee will have satisfied their obligation to reasonably apprise the employer that the leave may be FMLA-qualifying.  Such linkage may be established despite the passage of several years since the last time FMLA leave was used.                  

To comply with the FMLA, employers should ensure that FMLA decision-makers have ready access to information regarding an employee's past FMLA usage in order to determine if their is any linkage with a current leave request.  It is doubtful that compartmentalization of this information within an employer will defeat a claim that the employer, as opposed to any one supervisor, was not on notice of the prior, approved FMLA leave usage. 

Similarly, employer's should put systems in place so that institutional memory of an employee's past FMLA usage is not lost because a leave administrator or supervisor transfers to another position or leaves the company.   

Feeling "Stressed Out" Insufficient Notice of Need for FMLA Leave

Absent a known prior medical history, an employee's complaints to his HR manager that he felt "stressed out" and did not know what to do, failed to reasonably apprise his employer that he needed time off for a serious health condition within the meaning of the FMLA.  The court observed

Indeed, "feeling stressed out"' is common to the workplace and hardly puts an employer on notice of a "qualifying condition" under the FMLA. 

Comment:  To perfect the right to take FMLA leave an eligible employee must impart sufficient information, through words, conduct, or both, to reasonably apprise the employer that the leave may be needed for an FMLA-covered condition.  In providing notice, the employee need not invoke the FMLA by name or use any "magic words."  The critical test for substantively-sufficient notice is whether the information that the employee conveyed to the employer was reasonably adequate to apprise the employer of the employee's request to take leave for a serious health condition that rendered him unable to perform his job.  If an employee provides enough information about a qualifying condition, the burden of inquiry shifts to the employer to seek further details to confirm that the leave may be covered by the FMLA.   

In Lackman v. Recovery Services of New Jersey, Inc., No. 06-2016 (RMB), 2008 U.S. Dist. LEXIS 11085 (D.N.J. Feb. 13, 2008), the employee's statement that he felt "stressed out" was so deficient that the court did not shift the burden of inquiry to the employer.  Courts have similarly found that employee requests for leave because they felt "sick" or "didn't feel well" failed to provide adequate notice that the leave may be covered by the protections of the FMLA.    

   

Third Circuit Finds Adequate Notice of Need for FMLA Leave Does Not Require Exact Dates and Duration of Leave

To perfect the right to FMLA leave an eligible employee must provide his or her employer with reasonably adequate information under the circumstances to understand that the employee seeks leave under the FMLA.  In providing notice, the employee need not use any magic words.  The employee does not have to expressly assert rights under the FMLA or even mention the FMLA.  The critical question is how the information conveyed to the employer is reasonably interpreted. 

An employee who needs medical treatment may inform his or her employer of the need for leave before scheduling treatment in order to reasonably accommodate the needs of the employer.  An employee who does not cite to the FMLA or provide the exact dates or duration of the leave nonetheless may provide his or her employer with sufficient information to reasonably apprise the employer that the employee's request may be covered by the FMLA.

In Sarnowski v. Air Brooke Limousine, Inc., No. 06-2144, 2007 U.S. App. LEXIS 28668 (3d Cir. Dec. 12, 2007), the Third Circuit vacated and remanded the award of summary judgment to the employer dismissing the Sarnowski's FMLA interference claim.  In that case, Sarnowski was terminated eight days after informing his supervisor that his doctor had advised him of the need to monitor his heart and the possible need for additional surgery and 6 weeks of leave.  At the time, Sarnowski had only recently returned to work after missing 6 weeks of work due to quintuple coronary artery bypass surgery.  The court found that the Air Brooke had sufficient notice of Sarnowski's intent to take leave to bar Air Brook from interfering with his FMLA rights.

Comment:  FMLA protection can be invoked by employee notice that they may need FMLA leave at some unknown time in the future and for an unknown duration.  The decision certainly can be interpreted in a way that invites employee abuse. 

For example, an employee who may need intermittent leave at some unknown point in the future notifies the employer of a serious health condition in accord with Sarnowski.  Three years later the employee is absent without warning. The employee claims that adequate notice of the need for leave was provided three years earlier. 

Employers might argue that notice three years earlier was insufficient. Remember, Sarnowski required that the notice provide the employer with "reasonably adequate information under the circumstances to understand that the employee seeks leave under the FMLA."  The facts of Sarnowski suggest that a determination of the need for surgery and additional leave pending the results of further monitoring was reasonably imminent, not open-ended.  Of course, one could argue the opposite; that court in Sarnowski did not place any time limit on when leave must be taken after notice is provided.

Allowing employees to request leave even though they don't know if or when it may start also burdens the employee.  The FMLA places temporal limitations when an employee must request leave based on whether the need for leave is foreseeable or not.  Employer's could argue that Sarnowski requires employee's to notify the employer of the need for leave even though the employees does not yet know the schedule or amount of leave needed.  If the employee waits until they know their leave schedule their request for leave may be untimely.  If the request is untimely, an employer may have the right to delay or deny FMLA leave.

Courts Find that Bizarre Behavior, But Not Chronic Tardiness, Provided Employer Constructive Notice of Employee's Need for FMLA Leave

Courts in two recent cases addressed whether an employee's actions provided the employer with sufficient, constructive notice that the employee may need FMLA leave to shift the burden of inquiry to the employer to determine if FMLA leave should apply. 

In Stevenson v. Hyre Elec. Co., No. 06-3501, 2007 U.S. App. LEXIS 24197 (7th Cir. Oct. 16, 2007), the Seventh Circuit found that the employee's bizarre behavior may have put her employer on constructive notice that the employee may need FMLA leave.  In that case, Beverly Stevenson had an extreme emotional and physical response to a stray dog entering her workplace at Hyre Electric.  After seeing the dog at work, Steven confronted her supervisor for several minutes, yelling, cursing, and screaming that animals should not be in the workplace. She left work early that day, and called in the next several days complaining that she wasn't feeling well."  When she returned to work a few days later, Steven angrily and aggressively confronted Hyre's president, yelling and cursing about dogs in the office.  The explosive meeting lasted eight to ten minutes, and was overheard by other employees.  Stevenson filed a complaint with OSHA regarding the dog incident. 

Prior to the incident, Stevenson had been a model employee with no prior discipline.

Stevenson left work and went to the hospital complaining about headaches for three days.  EKG and CAT scans came back normal, although she was diagnosed as suffering from stress and anxiety.  Stevenson called in sick the next two days.  She returned a few days later and, when she discovered that the contents of her desk had been boxed up and moved to another room, she called the police and went home. Stevenson left the Hospital report on her supervisor's desk. 

Hyre sent Stevenson a letter informing her of her FMLA rights, and requested medical documentation.  Stevenson called in sick the next few days, during which she saw several doctors.  Stevenson did not return to work the next several days, allegedly on the instruction of her Union.  She was subsequently terminated.

The Court initially found that Stevenson was put on notice that she might have an FMLA condition when she was diagnosed with anxiety and stress.  The diagnosis triggered her FMLA obligation to notify her employer within one or two working days that she may need FMLA leave.  The court found that Stevenson failed to notify Hyre failed to give her employer notice that she needed leave for an FMLA covered serious health condition when she subsequently called in "sick" or by reporting that she was not "feeling well." 

The court rejected the argument that Hyre's notification to Stevenson of the availability of FMLA leave constituted an admission that Hyre had notice that the leave was FMLA-qualifying. The court observed:

... if notice could be presumed whenever an employer asks an employee if she needs FMLA leave, then the FMLA notice requirement would be rendered meaningless.

Absent direct notice from the employee, the court next considered whether the employee provided constructive notice of the need for FMLA leave, as permitted by Byrne v. Avon Products, 328 F.3d 379 (7th Cir. 2003).  In Byrne, the Seventh Circuit recognized that an employee was excused from providing direct notice of the need for FMLA leave in two situations: (1) where the employee is unable to communicate his or her illness to the employer; or (2) clear abnormalities in the employee's behavior provide the employer with constructive notice of a serious health condition.

The Seventh Circuit reversed the award of summary judgment to the employer after finding that district court had improperly merged the two Byrne exceptions.  The district court had found that the Bryne exception did not apply because Stevenson's condition did not prevent her from notifying her employer of the need for FMLA leave.  The Seventh Circuit reiterated that, under Byrne, "unusual behavior alone can be enough to notify a reasonable employer that an employee suffered from a serious health condition.

The Seventh Circuit went on to find that whether Stevenson's behavior was sufficiently "bizarre" as to provide constructive notice that of the existence of a serious health condition to shift the burden of inquiry to Hyre was a triable issue of fact.  The court observed:

Lengthy encounters of yelling and swearing at one's superiors so severe that a company locks out an employee with a previously unblemished record for safety concerns, coupled with the employee's calling the police because her belongings have been moved to another desk, are undeniably unusual and could be viewed by a trier of act as unusual enough to give Hyre notice of a serious health condition.  Of course, the fact-finder could find that Stevenson just had a bad temper that erupted during the period in question.

In Brown v. Eastern Maine Med. Center, No. 06-60-P-H, 2007 U.S. Dist. LEXIS 76967 (D. Me. Oct. 15, 2007), the trial court rejected the employee's argument that her chronic lateness provided her employer with constructive notice that she needed FMLA leave "especially in the complete absence of any explanation from Brown that her late arrivals were "medically necessary" as required for FMLA intermittent leave."  The court also noted that Brown also failed to provide notice of the anticipated timing and duration of her need for intermittent leave, as required by the FMLA regulations.  The court noted that the late arrivals were a common, not an unusual, occurrence.      

Comment: Under Byrne, bizarre behavior by an employee may place an employer on constructive notice that the employee has a serious health condition sufficient to shift the burden of inquiry to the employer.  The serious health condition does not have to render the employee unable to directly request FMLA leave.  Under Byrne, an employee who is unable to articulate a need for leave due to a serious health condition may, however, be excused from directly requesting FMLA leave.  This is a separate exception from the bizarre behavior exception to the general rule that an employee must provide his or her employer with direct notice of the need for FMLA leave.  An employer that fails to inquiry further and denies the employee FMLA leave runs the considerable risk of violating the FMLA.      

Under Brown, an employee's absences alone may not be sufficiently "unusual" or "bizarre" to constitute constructive notice that the employee, under Byrne, has a serious health condition requiring FMLA leave.

Until more circuits weigh-in on Byrne, employers shoulld add FMLA considerations to the mix when considering whether to take disciplinary action against an otherwise good employee who has engaged in unusual behavior.   The Seventh Circuit covers Wisconsin, Illinois, and Indiana.   

Normal FMLA Employee Notice Requirements Do Not Apply Where Employee Uses Sick Leave

Generally, where the need for FMLA leave is foreseeable, an employee should give an employer 30 days advance notice of the time the employee needs off.  29 CFR 825.302(a).  If the need is foreseeable but with less than 30 days advance notice of the need, the employee should notify his or her employer of the need for FMLA leave "as soon as practicable," normally within one or two working days of learning of the need for leave.  29 CFR 825.302(a).  An employer may delay or, in some cases, deny leave to an employee that fails to provide timely notice of the need for FMLA leave. 

The FMLA allows for the substitution of available paid leave for unpaid FMLA leave.  Where paid leave is substituted, an employer must apply any less onerous notice requirements permitted by the employer's paid leave policy.   For example, if an employee (or employer) elects to substitute paid vacation leave for unpaid FMLA leave and the employer's paid vacation leave plan imposes no prior notification requirements for taking such vacation leave, no advance notice may be required for the FMLA leave taken in these circumstances.  29 CFR 825.302(g). 

The interplay of the notice requirements of paid leave with unpaid FMLA leave was recently addressed in Simpson v. Office of the Chief Judge, No. 05 C 2592, 2007 U.S. Dist. LEXIS 75634, at *21-23 (N.D. Ill. Oct. 11, 2007).  There, the employer argued that the employee failed to give timely advance notice of the need for FMLA leave incident to planned surgery.  The employee gave notice the day before her absence was to begin.  Simpson took sick leave concurrent with FMLA leave.  Under the employer's sick leave policy, an employee was required to notify a supervisor "a minimum of one hour prior to beginning their tour of duty" that the needed to take sick leave.  The court, citing 29 CFR 825.302(a), found that Simpson provided timely notice of the need for FMLA leave.

Comment:  The case, surprisingly one of only a very few, reminds us that an employer's paid leave policies may greatly reduce the amount of advance notice of the need for FMLA leave that an employer may require an employee to provide.  Employers should review their paid leave policies to determine if changes need to be made so that they get the maximum advance notice of the need for FMLA leave that they are entitled to receive under the Act.  Where the employer has a labor union, such changes may require collective bargaining.

Employee's Unilateral Announcement That He Would Change His Work Schedule Was Insufficient Notice of Need for FMLA Leave

In Costello v. Public Service Enterprise Group, No. 05-3344 (AET), 2007 U.S. Dist. LEXIS 64145 (D.N.J. Aug. 30, 2007), the employee was upset as a result of delays in assigning him to a 4-week rotation day shift schedule.  He complained that the delay in assigning him a shift schedule was making it difficult to care for his seriously ill father.  At all relevant times, PSEG knew that Costello had taken time off to care for his father. 

After a few months without resolution, Costello informed management in writing that he would no longer be reporting for work as scheduled, and that he had unilaterally decided to assign himself to a 4-week rotation shift schedule.  The letter detailed Costello's qualifications for the position.  It also reiterated that his current schedule was causing problems regarding his ability to provide care to his elderly father.  Costello missed several days of work.  The days missed coincided with days off under his unilaterally assigned shift schedule.  PSEG terminated Costello after he refused to report to work as scheduled by the employer. 

Costello argued that his termination violated the FMLA.  The court disagreed.  The court found that the letter failed to provide PSEG with sufficient notice that Costello's was seeking FMLA leave.  The court noted:

Here, finding Plaintiff's July 3, 2003 letter sufficient to constitute an exercise of FMLA rights would require PSEG to be not only clairvoyant, but to disbelieve the precise reason Plaintiff offered for his absence, and conclude instead, based upon alleged knowledge that he cared for an ailing father, that he intended to take FMLA leave instead of scheduled days off.  The Court will not impose such a requirement... Here "[t]here was no reason for [PSEG] to believe anything else concerning Plaintiff's [absence] except what Plaintiff told them"; he wanted a new work schedule, and if PSEG was not going to give it to him, he was going to take it.  Id.

As further evidence that the schedule change was not a request for FMLA leave, the court noted that Costello had successfully requested FMLA leave in the past. 

Comment: The FMLA entitles eligible employees to leave for covered conditions.  The FMLA does allow an employee to unilaterally change their schedule to a different shift that better accommodates their need for FMLA leave.  At most, the FMLA allows an eligible employee to alter their current schedule by use of leave on an intermittent or reduced leave schedule until their 12-week entitlement is exhausted.

For me, the decision is problematic.  In finding the employee's notice of the need for leave insufficient the court focuses on the part of employee's letter that discusses his qualifications for the position on the desired shift as evidence that the employee simply wanted a schedule change.  The decision, in my opinion, does not sufficiently credit Costello's initial rationale (which is also set forth in the letter) for seeking a schedule change: the need to take care of his seriously ill father.  The decision could have easily gone the other way, particularly since there was no evidence that PSEG made additional inquiries to determine if the schedule change to care for the parent was covered by the FMLA.      

In my opinion, the court appears to have been unimpressed with Costello's unilateral announcement that he was changing his schedule in the absence of evidence that he in fact needed FMLA leave to care for his father beginning on the date of his unilateral schedule change.  Employees who are upset about the pace of their employer's consideration of their request for leave or a schedule change should think long and hard before unilaterally taking matters into their own hands, particularly where the need for leave is foreseeable and they are aware of how to request FMLA leave.

Because I believe that a different outcome could have resulted had the court been more inclined to view the employee's unilateral change in schedule as a frustrated request for FMLA leave, I think there is a better than even chance that the award of summary judgment to the employer could be overturned on appeal.