Filing Period for FMLA Denial Doesn't Run at Firing

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By Jay-Anne Casuga

Oct. 20 — An Illinois Department of Corrections employee who filed a Family and Medical Leave Act suit only after being fired for accumulating too many unauthorized absences, some of which she alleged were protected under the FMLA, can't proceed with a denial of leave claim because it was untimely filed, the U.S. Court of Appeals for the Seventh Circuit ruled in an issue of first impression for the circuit.

The ruling adds to an apparent circuit split on when the FMLA's two-year filing period begins to run for FMLA claims involving denials of statutory leave.

Affirming summary judgment to the Department of Corrections, the Seventh Circuit found that the text of the FMLA requires suits to be filed no later than two years “after the date of the last event constituting the alleged violation for which the action is brought.”

In the present case, the court said, the alleged FMLA violations occurred each time the department denied Cindy Barrett's requests for leave and classified her contested absences as unauthorized, and not when she was terminated years later as a consequence of her accumulated absences.

Judge Diane S. Sykes wrote the opinion, joined by Judges Joel M. Flaum and Michael S. Kanne.

Unauthorized Absences Alleged Over Several Years

According to the court, department policy subjected employees to termination after 12 unauthorized absences. Barrett was fired in October 2010 after amassing 12 such absences over the course of seven years.

Barrett, however, contended that three of those absences were FMLA-qualifying. Specifically, she claimed that she was absent in December 2003 because she was admitted to an emergency room for pneumonia, in December 2004 because her daughter went into premature labor and in August 2005 to attend a physical therapy appointment.

She challenged each purported unauthorized absence to the department's Employee Review Board, which upheld discipline against Barrett.

Following her termination, Barrett sued the department under the FMLA in January 2012. The U.S. District Court for the Central District of Illinois granted summary judgment to the department, finding that Barrett's claim was untimely because she didn't file her suit within two years of her last leave denial.

Employee's Suit Untimely, Court Says

Affirming on appeal, the Seventh Circuit explained that “little authority” exists as to when the two-year filing period begins to run for claims alleging unlawful denial of leave under the FMLA.

It said the Eighth Circuit has held that an FMLA violation occurs when an employer improperly denies an employee's leave request and not when the worker is later terminated for excessive absences.

By contrast, it said the Sixth Circuit has taken the approach that employees fired for excessive absenteeism can still challenge their terminations even if the filing periods following the alleged denials of their statutory leave had expired.

The Seventh Circuit said the Sixth and Eighth circuits' decisions “are thinly reasoned” and “unhelpful.”

As such, the court turned to the FMLA's statutory text, which states that “an action may be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.”

Where an employee alleges that an employer violated the FMLA by denying qualifying leave, the court said the “last event” constituting the claim “ordinarily will be the employer's rejection of the employee's request for leave.”

“So it is here,” the court ruled. “Each time the Employee Review Board ruled against Barrett, an actionable FMLA claim accrued and the limitations clock started to run.”

In order to timely file suit, the court said, Barrett would have had to file her claim within two years of her December 2003, December 2004 and August 2005 leave denials.

“Her suit—filed in January 2012—was several years too late,” it said.

Title VII Not Necessarily Comparable

The Seventh Circuit observed that the district court went beyond the FMLA's text in its ruling and compared the FMLA's filing periods to those under Title VII of the 1964 Civil Rights Act.

The appeals court said it was “skeptical” about the utility and appropriateness of that particular analogy, given the prescriptive nature of the FMLA, which can grant benefits absent adverse employment actions, versus the proscriptive nature of Title VII, which generally prohibits adverse discriminatory acts.

Even if the two laws were comparable, the court said, Title VII's filing periods generally run from the date of a discrete adverse action. If an employee brings a hostile work environment claim under Title VII, however, then he or she can still recover for time-barred conduct that is part of an ongoing unlawful employment practice if at least one adverse act occurs during the appropriate filing period.

“Barrett’s claim is not analogous to a claim for hostile work environment,” the court said.

Instead, her claim involves the alleged denial of leave on three occasions, which would constitute discrete acts that each triggered the requisite filing period.

The court acknowledged Barrett's argument regarding the impracticality of suing under the FMLA each time leave is denied. However, it said the FMLA provides an administrative remedy in such instances, as employees can file a complaint with the Labor Department's Wage and Hour Division, which may then bring a compliance action following an investigation.

Baker, Baker & Krajewski represented Barrett. The Illinois Office of the Attorney General represented the Department of Corrections.

To contact the reporter on this story: Jay-Anne Casuga in Washington at jcasuga@bna.com.

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com.

Text of the opinion is available at http://www.bloomberglaw.com/public/document/CINDY_BARRETT_Plaintiff_Appellant_v_ILLINOIS_DEPARTMENT_OF_CORREC.