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Employee Not Qualified for FMLA Leave Cannot Receive Procedural Protections of FMLA
Description Appeals court upheld the dismissal of a claim that an employee's FMLA leave rights were violated because the employer waited more than two days to deny the leave. FMLA procedure states that an employer must respond within two days. The employee had not worked enough hours to qualify for FMLA leave, so the two day notice issue did not apply.
Topic Employment Law
Key Words Family and Medical Leave Act; Eligibility; Administrative Interpretation
C A S E   S U M M A R Y
Facts Brungart worked for BellSouth in Florida from 1991 to 1994, when she was granted an unpaid leave of absence, which lasted 20 months. At her request, she was transferred to Alabama. Soon after she finished training there, she applied for FMLA leave and left work. She told her supervisor she would be gone for ten days; her supervisor told her to call in every couple days to let them know when she would be back. After a week, she had not called, so her supervisor called and told her she was a "no report" because she had not checked in. After she returned to work, she received a written reprimand for her absence. Her FMLA leave was also denied because she had not worked for 1,250 hours during the previous 12 months. During the next six months, she received warnings about poor performance on the job. During that time, she applied for FMLA leave to have knee surgery. In June, that was approved to begin on July 10. She was fired on July 9 for poor job performance. She sued, contending the termination was for applying for FMLA leave and that the prior denial of FMLA leave was improper because it took too long. The district court dismissed her suit; she appealed.
Decision Affirmed. A Department of Labor regulation regarding FMLA states that an employer must respond to a request for FMLA leave within two business days or the employee will be deemed eligible for leave. However, since Brungart had not worked enough hours during the previous year to be eligible for FMLA leave, the fact that her request was denied more than two days after it was submitted is irrelevant. She was not eligible for leave. The part of the regulation that would make eligible an employee who is not otherwise eligible is invalid. Further, her claim of retaliatory discharge for applying for FMLA leave does not hold because the person who terminated her for poor performance did not know she had applied for leave to begin in July. There is no prima facie case of retaliation.
Citation Brungart v. BellSouth Telecommunication, Inc., 2000 WL 1584555 (11th Cir., 2000)

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