In Potts v. Franklin Elec. Co., No. CIV 05-433-JHP, 2006 U.S.Dist. LEXIS 60781 (E.D.Ok. Aug. 24, 2006), the court found that an employee need not be entitled to FMLA leave to maintain a civil action for interference with or retaliation for exercising FMLA rights. Potts had been an employee of the defendant for approximately ten years prior to his termination. He was informed by his dentist that he might have cancer of the mouth. Potts notified his employer of the dentist’s opinion, and that he anticipated needing FMLA leave for a biopsy and cancer treatment. Shortly after informing his employer of his need for leave, Potts was terminated. The company argued that the termination had nothing to do with his leave request but was based on a separate matter. Approximately two months after his termination. Potts learned he did not in fact have oral cancer. The company moved to dismiss the FMLA claims arguing that, because he was not ultimately diagnosed with cancer he did not have an FMLA-covered serious health condition and, therefore, could not establish a prima facie case of interference or retaliation. The court disagreed. The court found that whether Potts was ultimately entitled to leave was immaterial to the issue of whether his employer interfered or retaliated against him for the “attempt to exercise” his rights under the FMLA. The court reasoned that Act (29 U.S.C. 2615(a)) does not say that employees must be “eligible” or “qualified” before they may file either an interference or retaliation claim for requesting leave. The court opined that the FMLA would protect someone who mistakenly asks for FMLA leave although they may be ineligible. It also observed that the anti-discrimination provisions apply to prospective employees who, by definition, are not yet eligible for FMLA leave.
Comment: The decision illustrates a contradiction under the FMLA. The court is correct that the anti-interference and anti-retaliation provisions apply even though the employee is not eligible or otherwise entitled to FMLA leave. The court is on more shaky grounds where it proclaims that prospective employees can sue for violations of the FMLA. The statute and the DOL implementing regulations actually limit civil suit to an “employee.” As defined in the statute and regulations, the term does not include non-employees. The courts have nevertheless split on the issue, some allowing suit by non-employees while others have dismissed such suits. Moreover, the FMLA limits the award of monetary damages to eligible employees, further limiting the utility of allowing non-employees to sue for FMLA violations. The issue is addressed in Chapter 15 of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation (Dewey Publications, Inc. 2003 & 2005 Supplement).