The Federal Sector FMLA Blog

Unfamiliarity with FMLA Procedures Not A Defense to Willful FMLA Violation

In Fialho v. Girl Scouts of Milwaukee Area, Inc., No. 06-C-1218, 2007 U.S. Dist. LEXIS 31780 (E.D.Wisc. April 30, 2007), the Girl Scouts moved to dismiss the employee's FMLA retaliation claim as time-barred.  Fialho was in an auto accident on March 17, 2004 and was granted unpaid medical leave under the FMLA.  She was cleared to return to work with no restrictions on August 23, 2004.  However, she missed work on August 31, 2004 and was terminated on September 1, 2004. 

The Girl Scouts argued that the complaint was filed more than two years after her termination and, therefore, was untimely.  It also argued that the three-year statute of limitations for "willful" FMLA violations did not apply because management was unfamiliar with the FMLA and the proper procedures for processing FMLA claims. 

The Court found that the facts were sufficient to state a timely willful violation.  According to the Court:

Unfamiliarity with proper FMLA procedures does not preclude familiarity with the FMLA in general.  Fialho's complaint at least arguably states a claim for retaliation, in that she was apparently attempting to exercise her FMLA rights on the day she was terminated by brining in a doctor's excuse for her absence.  Such a claim would fall under the FMLA's extended three-year limitations period.

Comment: Generally speaking, ignorance of the FMLA is not going to be an effective defense to a willful FMLA violation.  Indeed, some courts have imposed double damages for willful FMLA violations where an employer argued, and established, that they were clueless when it came to their FMLA responsibilities.  To avoid FMLA liability, covered employers must ensure that managers responsible for FMLA administration know what they are doing.  Ignorance of the law is neither an excuse nor a defense to an FMLA claim.   

Filing of Grievance Does Not Toll Running of FMLA Statute of Limitations

The FMLA permits an aggrieved employee to file a civil suit for monetary damages.  Generally, a civil suit must be filed within 2 years of notice of an adverse employment action.  If a violation is willful, an employee has up to 3 years to file a civil action.  The pendency of a grievance or some other method of collateral review of an employment decision does not toll the running of the FMLA limitations period.

In Ramirez v. New York City Board of Education, No. 03-CV-4765, 20006 U.S. Dist. LEXIS 95816 (E.D.N.Y. March 30, 2007), Julio Ramirez worked as a Provisional Preparatory Teacher (PPT) for the Board.  A PPT holds a temporary teachers license.  Ramirez employment was covered by a collective bargaining agreement (CBA) between the Board and the United Federation of Teachers. Pursuant to the CBA, Ramirez had to receive a satisfactory rating each year in order to renew his provisional license to teach. 

Ramirez was terminated after the 2000-2001 school year.  He received an unsatisfactory performance rating for missing 42 days.  Ramirez appealed his termination to the Chancellor's Committee.  After a hearing, the Committee upheld the unsatisfactory rating and termination. 

On September 19, 2003, Ramirez sued, alleging that his termination violated the FMLA.   The Board moved to dismiss the suit alleging that it was not filed within 2 years of the Board's informing Ramirez that he no longer had a teaching position.  The Court agreed.  The Court found that Ramirez had failed to establish that his termination was willful.  As such, he was subject to the 2-year statute of limitations.  The Court went on to find that Ramirez had failed to file suit within 2 years of the latest date he was informed he no longer had a teaching position.  In so doing, the Court rejected Ramirez argument that the time he appealed the matter to the Chancellor's Committee tolled the running of the statute of limitation.  The Court observed:

The pendency of a grievance or some other method of collateral review of an employment decision does not toll the running of the limitations periods. The existence of careful procedures to assure fairness in the tenure decision should not obscure the principle that limitations periods normally commence when the employer's decision is made.

Comment:  The running of the FMLA statute of limitations is not tolled while an employee pursues a grievance, an EEO, a DOL complaint, or uses some other form of dispute resolution to address the adverse employment action at issue.  To preserve their right to sue for FMLA violations, employees must timely file suit no matter what other contractual, administrative, or legal avenues of redress they may be using to vindicate their rights.  Failure to timely file suit will result in the dismissal of the complaint no matter how valid the employee's FMLA claim may have been on the merits.

The decision is relevant to non-civil service employees, including congressional employees and employees of the Executive Office of the President. The decision is not relevant to civil service employees as they do not have the right to sue in court for FMLA violations.  Civil service employees are limited to filing a grievance for FMLA violations.

 

Willful Violation Not Established by Placement of Employee in Comparable Position on Return from FMLA Leave But With Employees She Did Not Get Along With

The court in Hardwick v. Blackwell Sanders Peper Martin, L.P. No. 05-859-CV-W-FJG, 2006 U.S. Dist. LEXIS 65786 (W.D.  Mo. Sept. 14, 2006) held that an employee failed to establish that her employer willfully violated the FMLA when it placed her in a comparable position but with employees she did not get along with.  On her return from FMLA leave plaintiff was briefly returned to her same position in the mail room.  Thereafter, she was assigned to work half a day in the Facsimile Center , which was across the all and second half of the day she worked in the library. She received the same pay, the same benefits, worked the same number of hours, and the tasks in the Facsimile Center were very similar to her duties in the Mail Center.  She testified that she enjoyed the work that she did in the library.  Her only allegation that supports her claim that the action was willful was that tne environment was different because there were employees with whom she did not get along.  However, plaintiff admits that when she complained about those employees her employer took action by sending them to anger management classes and counseling them.  On that record, the court held that plaintiff had failed to establish that her employer’s actions in assigning her to the Facsimile/Library position on her return from FMLA leave was willful.  Rather, the court found that plaintiff was placed into a comparable position with the same pay, benefits, hours and duties.  The court concluded that the two-year statute of limitations applied, and dismissed the civil action as untimely.

Comment:  The FMLA entitles an employee to be returned either to their same position or an equivalent position, with equivalent pay benefits, duties, and terms and conditions of employment.  Title I, the CAA, and the PEOAA also permit civil suit for violations of the FMLA, but places temporal limitations on such suits.  Generally, an aggrieved employee must initiate suit within two years of the FMLA violation.  An employee may initiate a civil suit within three years of the infraction where the violation is willful.  The term “willful” is not expressly defined in the FMLA.  Courts have looked to the FLSA to define that term.  Under the FLSA, a plaintiff must demonstrate that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the Statute.  Except for being placed with some employees with whom she did not get along, the court found that Hardwick was placed into a comparable position.  It appears that the court felt that placement with employees who she did not get along with did not establish that the employer manifested reckless disregard for the requirements of the FMLA.  I note that the FMLA’s restoration obligation does not extend to de minimis or intangible, unmeasurable aspects of the job.  29 CFR 825.215(f).  Working with employees who the plaintiff claimed she “did not get along with” arguably falls into that exception.