In Fisher v. Pohlman, Inc., No. 4:06CV01761 AGF, 2007 U.S. Dist. LEXIS 4725 (E.D.Mo. Jan. 23, 2007), the Court denied the employer's motion to dismiss plaintiff's FMLA interference claim. Cheryl Fisher worked for Pohlman as a Certified Mechanical Inspector from 1992 until her termination on September 17, 2004. In February 2003, Fisher asked for and was granted intermittent FMLA leave to care for her spouse with a serious health condition. Pohlman had a leave policy that assessed points for missed work and provided that an employee who accumulated 9 points was automatically fired. In 2003 and 2004 Fisher alleged that Pohlman assessed points to her for leave that was FMLA leave. Her attempts to have these points removed from her record were rebuffed. After an attempt to discuss the matter with the Director of Human Resources she was fired.
Pohlman moved to dismiss alleging that Fisher's interference claim filed because she did not assert that FMLA leave was denied. The court disagreed.
The Court found that Fisher's allegations, if proven, were sufficient to make out an FMLA interference claim. According to the court, "interference" includes not only refusing to authorize FMLA leave, but discouraging an employee from using such leave. The Court found that assessing absenteeism points and terminating an employee for use of FMLA leave could be construed to deter an employee from exercising her rights under the FMLA.
Comment: The FMLA's anti-interference provisions protect more than an employer's denial of FMLA leave. It also protects employees from adverse employment actions that may deter an employee from using FMLA leave. The Court determined that the assessment of absenteeism points that could (and in fact did) lead to discipline or removal arguably may deter an employee from exercising FMLA rights.
My mother works at a Pharmacy Tech for Wal-Mart in Sparta, TN. For the past two years they have hasseled her about taking days off to see her doctor. Their "policy" is "We need a 3 month advanced notice" about days/weeks/etc off. She and one other lady are the only females there that are shall I say the "older ones" (in their 50's). My mother constantly complains about how the younger girls constantly come late, or not at all due to getting drunk the night before. My mother was just recently in the ER this past Friday (June 12th, 2009) for exhaustion. They have my mother working 7 days straight all the time, and make her work weird shifts all the time, while givin the other girls a set schedule of days and times. She took off a few days here an there due to FMLA for medical purposes and her supervisor wouldn't grant it because as he told my mother to her face, "You just had your doctor sign a bogus slip to get a day off from work." My mother has just been put on a one week leave from her doctor for the week of June 15th, 2009 - June 19th, 2009, and now she fears when she returns to work on Monday (June 22, 2009) they may fire her.
Theresa,
Age discrimination is illegal. It is also illegal to terminate an employee for exercising their rights under the FMLA. If that happens contact your local office of the U.S. Department of Labor and file a complaint. They will investigate it for you for free. In many cases they can secure a quick settlement. For attorneys, check out the website of the National Employment Lawyers Association (NELA). You can search for members in you area. Attorneys who belong to this organization specialize in representing employees. You want a specialist.
Posted by: Theresa Chislum | June 18, 2009 at 08:04 AM