Fifth Circuit Finds That Employee Failed to Provide Adequate Notice of Need for FMLA Leave

Quick Hits

• An employee informed her supervisor of her plan to care for her ailing father during lunch breaks, but she did not indicate a need for additional time outside the half-hour lunch period. The employee informed a human resources employee that she might explore “possibly getting FMLA,” but she never requested FMLA paperwork. These actions were insufficient to put her employer on notice that she actually intended to take FMLA leave.
• The employer satisfied its obligation under the FMLA when the supervisor suggested the employee contact human resources to inquire about FMLA leave. The court noted that the employee was aware of the company’s internal procedures for requesting FMLA leave because she previously had taken FMLA leave.
• Employers may want to consider implementing clear internal procedures through which employees may request leaves under the FMLA, and also training supervisors and managers to recognize situations in which to refer an employee to the FMLA process.
• The FMLA does not require an employee to use “magic words” to avail herself of the benefits of the FMLA. She satisfies her notice requirement when she provides sufficient information to reasonably apprise the employer of a request to take time off for a serious health condition.

Background

Elizabeth Cerda was a long-term employee of Blue Cube Operations, LLC. In 2017, she successfully applied for a medical leave under the FMLA to recover from a surgical procedure. She exhausted her twelve-week FMLA entitlement and remained on an extended leave until late 2018. Upon her return, Cerda informed her supervisor that she planned to visit her father during her thirty-minute lunch break to make sure he took his medications and ate lunch. Cerda routinely took lunch breaks in excess of the thirty-minute allotment to assist her father, but failed to properly clock in and out to record the full length of her lunch breaks.

Several months after Cerda began this practice, her supervisor suggested she contact human resources to inquire about FMLA leave. In response, Cerda informed a human resources employee, with whom she happened to cross paths in a hallway, that she wanted to explore “possibly getting FMLA” to care for her father. Cerda never followed up with human resources to begin the formal process of requesting FMLA leave. Nor did human resources contact Cerda.

Eventually, Cerda’s coworkers complained about her frequent long lunches. Blue Cube investigated, and learned that Cerda had failed to accurately record the length of her lunch breaks and as a result had been paid wages for at least ninety-nine hours of time that she had actually spent on extended lunch breaks rather than at work. While Blue Cube was investigating, the company required Cerda to use personal sick days for absences when she was exposed to COVID-19. In response, Cerda threatened to come to work to infect coworkers if she ever contracted the virus in the future.

Blue Cube terminated Cerda’s employment because she received wages for ninety-nine hours she didn’t work, as well as her threat to expose her coworkers to COVID-19. Cerda filed suit in the U.S. District Court for the Southern District of Texas, alleging FMLA interference and retaliation, among other claims. The district court granted summary judgment to Blue Cube on all claims.

The Fifth Circuit’s Decision

In dismissing Cerda’s claim for FMLA interference, the Fifth Circuit found that Cerda failed to provide evidence that she gave Blue Cube adequate notice of her intent to take FMLA leave. It is well-established that, although an employee need not expressly name the FMLA in order to provide the employer the requisite notice, she must make her intention to take leave sufficiently clear.

The court noted that Cerda pointed to two pieces of evidence purportedly in support of her contention that she satisfied her duty to inform Blue Cube of an intent to take FMLA leave: (1) her brief conversation with a human resources employee in the hallway, and (2) an affidavit from her supervisor establishing that he knew of her father’s serious ailments. However, the court also noted that Cerda herself testified that she had never requested leave of any kind, and, moreover, had informed her supervisor that she could care for her father during standard lunch breaks and did not need additional time.

The court found it compelling that Cerda did not use Blue Cube’s internal procedures to ask for FMLA leave, even though she knew about the procedures because she previously had taken FMLA leave. An employer may condition FMLA-protected leave upon an employee’s compliance with the employer’s usual notice and procedural requirements. Finally, the court noted that, to the extent Cerda’s supervisor had sufficient knowledge of her need for FMLA leave, he satisfied his obligation by referring her to human resources to inquire about FMLA-protected leave.

The Fifth Circuit also rejected Cerda’s FMLA retaliation claim because she never engaged in a protected activity, given that she never invoked the company’s internal procedures to seek FMLA leave. The court also found that the company had legitimate nondiscriminatory reasons for terminating her employment.

Key Takeaways

Employers may want to consider creating written internal policies and procedures for employees to follow when requesting FMLA leave, and making these policies and procedures readily available to the workforce. In addition, employers may want to consider implementing training for managers and supervisors to ensure they can recognize situations where an employee may benefit from FMLA leave, and can appropriately refer the employee to initiate the FMLA process. Finally, employers may want to ensure that their human resources professionals are well-versed in the employer’s FMLA obligations and take appropriate steps to follow up in response to employee inquiries.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will publish updates on the Leaves of Absence blog as additional information becomes available.

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