On October 9, 2013, the First Circuit Court of Appeals affirmed summary judgment in favor of an employer on claims brought under the Family and Medical Leave Act (FMLA) by a former employee. The court held that the employee was not eligible to take FMLA leave because he had not worked 1,250 hours in the previous year, that he could not establish his employer’s handling of his FMLA application caused him any harm, and that he was not fired for requesting FMLA leave but for his indefinite absence. McArdle v. Town of Dracut, No. 13-1044 (1st Cir. October 9, 2013).
Raymond McArdle had been a middle school English teacher in the Dracut school district since 1997. Beginning in 2007, he experienced personal issues that caused him to miss numerous school days during the 2008-2009 school year.
On the first day of the 2009-2010 school year, McArdle did not report to work and he informed the principal that he made the decision it was not in anyone’s best interest for him to return to the school. At the same time, he stated that he wanted to apply for FMLA leave. The superintendent’s office then sent him paperwork, including a form to be completed by his doctor and a statement that he had to notify the superintendent in writing of any request for FMLA leave. McArdle did not send the superintendent a written notice or a completed form from his physician.
On September 28, 2009, the principal sent McArdle a letter, terminating his employment for abandoning his position. In response, McArdle requested FMLA leave in writing for the first time and stated that the school district was required to give him notice of intent to terminate his employment before firing him. A few days later, the principal sent McArdle a second letter, notifying him of the school district’s intent to terminate him and allowing him 10 days to respond. Nine days later, McArdle resigned his position so as to avoid termination.
McArdle sued the school district, its former superintendent, its new superintendent, and the school’s principal, alleging violations of the FMLA. McArdle—in somewhat novel fashion—claimed that the school district violated the FMLA by interfering with his attempt to seek permission to take FMLA leave and by firing him because he attempted to avail himself of the protections of the FMLA for the leave he took (as opposed to the traditional arguments that the employer refused to grant FMLA leave or fired the employee for taking FMLA leave).
First addressing Mr. McArdle’s eligibility to take FMLA leave, the First Circuit determined that McArdle had worked only 82 days in the 12 months prior to the start of his leave and, thus, that he was ineligible for FMLA leave. In reaching that conclusion, the court rejected McArdle’s argument that he should be considered to have worked on days for which he had been paid without working (such as holidays and personal days). The court determined that even if he had worked additional days or hours from home, “[t]he gap between 615 hours and 1250 hours [as required to be eligible for FMLA leave] is so large that it is entirely implausible on this record that McArdle worked anywhere close to 1250 hours.” The court ruled, therefore, that McArdle did not work enough hours during the year preceding his request for FMLA leave to be eligible for leave.
Interference With FMLA Rights
The court next considered whether the school district interfered with McArdle’s FMLA rights by not notifying him of his eligibility to take FMLA leave. The First Circuit declined to rule whether the school district was obligated to inform him that he was ineligible in the first place and instead decided that even if there were a violation of notice requirements, McArdle offered no evidence or explanation of any loss or harm suffered. In other words, because McArdle was ineligible for FMLA leave and had offered no evidence that he would have returned to work or secured some other form of authorized leave, “nothing was lost, nor was any harm suffered, by reason of the alleged violations” in not providing any notice, if required.
Further, the First Circuit ruled that the school district did not unlawfully retaliate against McArdle. The court noted the unusual nature of the McArdle’s argument that he was fired for asking for FMLA leave, not for taking leave (as he was ineligible and could not have). The court stated that “it is not clear that one not entitled to take FMLA leave ‘avails himself of a protected right’ when requesting to take such leave.” The court explicitly left open the possibility, however, that an employee who was ineligible for FMLA leave could potentially have a retaliation claim, as an employee may not know he was ineligible until attempting to exercise his right. In this case, the court concluded on review of the summary judgment record that the “only reasonable reading . . . is that McArdle was not fired for asking to take FMLA leave. Rather, he was fired because the town concluded that his renewed and indefinite absence, without advance notice, allowed it to fire him.” The First Circuit therefore ruled that Mr. McArdle’s absence from work was “fully sufficient to cause his termination,” and that “no reasonable factfinder could find that the request for leave played any role in causing the town to fire [him].”
The First Circuit’s decision in this case is a reminder of the requirement that an employee must work at least 1,250 hours with the employer during the previous 12-month period to be eligible for FMLA leave. However, the court stopped short of determining that an employee ineligible for FMLA for that reason could never have a claim for wrongful termination in violation of the law. The court also did not decide whether the employer could be required by the FMLA to notify an employee that he or she is ineligible for FMLA leave. Nevertheless, the court upheld a summary judgment ruling in favor of an employer based on the facts presented.