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US Court of Appeals, 11th Circuit, holds FMLA right to commence leave is not absolute

US Court of Appeals, 11th Circuit, holds FMLA right to commence leave is not absolute
Krutzig v. Pulte Home Corp., No. 09-12512 (11th Cir. April 5, 2010)

Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Betsy Krutzig was employed by Pulte Homes. At the time of the events at issue she was on a performance improvement plan. On August 17, she requested FMLA leave for surgery. On the same day, a disgruntled customer filed a complaint with a Pulte Vice President. The VP decided the next day to terminate Lrutzig for failure to improve, and due to the customer complaint.

Krutzig sued alleging that her termination a day after requesting FMLA leave interfered with her right to take FMLA leave. The Eleventh Circuit disagreed. Joining the Sixth, Eighth, and Tenth Circuit, the Eleventh Circuit held that an employee does not have the absolute right to commence FMLA leave. An employee may be dismissed, preventing her from exercising her right to commence FMLA leave, without thereby violating the FMLA, if the employee would have been dismissed regardless of any request for FMLA leave.

The Court reasoned that an employee who requests FMLA leave has no greater protections against her employment being terminated for reasons unrelated to an FMLA request than she did before submitted her request. The Court found that to be the case, and affirmed the district court's award of summary judgment in favor of Pulte.

Mr. Bosland Comments: The decision is not a complete surprise as the Eleventh Circuit had previously found that an employer could deny reinstatement to an employee for reasons unrelated to the exercise of FMLA rights without violating the FMLA. The case presented the Court with the opportunity to apply the same rationale to discipline an employee after they have requested FMLA leave, thereby preventing the employee taking FMLA. Again, the employer may only do so where the action taken was for reasons unrelated to the exercise of FMLA rights. As in this case, legitimate reasons may involve removal. Non-disciplinary reasons, such as a layoff or business shutdown, may also prevent an employee from exercising FMLA rights post-request.

The Eleventh Circuit covers Atlanta, Georgia, and Florida.

Full post as published by New York Public Personnel Law on April 23, 2010 (boomark / email).