In Santiago . New York City Police Department, No. 05 Civ. 3035 (PAC)(MHD), 2007 U.S. Dist. LEXIS 91880 (S.D. N.Y. Dec. 14, 2007), the employee called the NYPD's Military Extended Leave Desk and specifically asked for FMLA leave due to depression. He was erroneously told that FMLA leave was not available. Santiago was on prior notice that the NYPD provided unlimited paid sick leave. Santiago did not seek paid sick leave but instead resigned. His request for reinstatement a month later was subsequently denied. He sued alleging violations of the FMLA.
In awarding summary judgment to the NYPD, the district court found that that the employee's explicit request for FMLA leave due to depression "cannot possibly constitute notice of a FMLA claim." Alternatively, the court opined that dismissal was appropriate because Santiago could not establish that he was injured by the denial of FMLA leave. The court noted that:
No injury can result when the available alternative [paid sick leave] is superior to the FMLA remedy.
Santiago, the court observed, "could have had an unlimited, paid leave had he followed the applicable NYPD's procedure. He chose not to pursue that route."
Comment: Many courts have found that to withstand a summary judgment motion an employee must establish that they suffered injury as a result of an employer's violation of the FMLA. This is the first case that I am aware of that has found that an employee's failure to utilize a known paid leave alternative provided by an employer will defeat an employee's FMLA interference claim even if the employer acted in violation of the FMLA.
Presumably, for this defense to apply an employer must demonstrate that (1) the alternative would cover the leave at issue [which could be up to the full 12 weeks of FMLA leave]; (2) the employee qualified for the alternative; and (3) the employee was on notice of the alternative.