• April 30, 2012

Two different FMLA plaintiffs fared very differently in cases decided last week.  In the first, Fries v. TRI Marketing Corp., U.S. District Court Judge Judge Joan Ericksen (D. Minn.) denied TRI’s motion for summary judgment and allowed Ms. Fries’ FMLA interference and retaliation claims to be heard by a jury.  In the second, Ballato v. Comcast Corp., the Eighth Circuit upheld a grant of summary judgment in favor of the employer by U.S. District Court Judge John Tunheim (D. Minn.).

Fries worked for TRI as a telemarketer and administrative assistant for about four years.  She suffered from a number of medical conditions, and had been warned by her supervisor about taking an excessive number of breaks.  On Friday, Fries missed work because of severe pain.  On Sunday, she went to the emergency room.  While there, she contacted her supervisor by text and informed her that she was in the hospital and had a doctor’s note to miss work on Monday.   Her supervisory texted her back, informing her that if she missed work on Monday she would be fired.   Because she was in extreme pain that day, Fries did not go to work on Monday.

Fries did return to work on Tuesday, even though she was still in extreme pain and vomiting.  She also had a catheter drainage bag which was visible to her co-workers.  Her supervisor tried to send her home, but Fries refused to leave.   On Wednesday, Fries was summoned to the office of the company’s owner.  At first, he told her that she was being suspended.  When she told him that that would be illegal and threatened to contact a lawyer and sue, the owner fired her.   At deposition, the owner testified that her threat to sue the company was “a little bit” of the reason for her termination.   He also provided her with a written statement that read: “Originally was suspended for 30 days, threatened to sue company and management.  It was then decided that termination was the best option.”  The owner later gave a similar written statement to Fries’ lawyer.

Fries sued, alleging both interference and retaliation under the FMLA.  Her interference claim was premised on the fact that the company suspended and then terminated her as a result of missing work due to her medical condition.    TRI raised four different arguments at summary judgment: (1) Fries was not qualified for leave because her condition did not qualify as a “serious health condition”; (2) she failed to provide the required notice of the need for leave; (3) the company did not deny her any FMLA benefit because it granted her leave; and (4) Fries’ termination was unrelated to her leave.

Judge Erickson rejected each of these arguments. As to the second argument, lack of notice, she indicated that an employee need not invoke the FMLA by name to put an employer on notice, and that the employer knew from Fries’ texts, doctor’s note and catheter bag that she was ill.   Combined, these were sufficient to put the company on notice that her absence might be covered by the FMLA.

Fries’ retaliation claim survived largely because of the statements of the company’s president linking her termination to her threat of suing the company.   “If the jury believes Fries’ testimony that her threatened lawsuit was related to the illegality of her suspension, . . . the [owner’s deposition] testimony, the termination letter, and [her supervisor’s] statement are direct evidence of retaliation.”

The lesson for employers: don’t fire an employee right after she threatens to sue you for violating her federally-protected rights, and don’t indicate that was the reason in a termination letter!

George Ballato did not fare as well as Ms. Fries in his FMLA case.   Ballato worked as a customer account executive for Comcast.  He applied for and was granted intermittent FMLA leave due to chronic fatigue and depression.  Under Comcast’s policies, an employee approved for intermittent leave must contact a particular department at the company when he needs to use leave.

After Ballato returned from 11 days of FMLA leave and a week of bereavement leave following the death of his mother, he sent several emails to his HR representative expressing dissatisfaction with his job and the pressure he felt he was under.  The next day, he met with the HR rep to ask if he could collect unemployment if he resigned.  Over the course of the next several days, Ballato sent a series of emails to other Comcast employees, including one to a vice president asking that he stop sending Comcast “propaganda”.    On June 4, he sent an email to his supervisor asking about his status as a Comcast employee.  When he was assured that he was still an employee, Ballato wrote: “That’s great!  I can’t wait to get back on the phones to truly educate our customers!”

Because Comcast viewed some of Ballato’s emails as “disturbing”, the company deactivated his access to Comcast’s computer systems and building that Friday.   An HR manager called Ballato twice that afternoon and left messages asking him to call, but Ballato did not return the calls because he was afraid he was being terminated.   Ballato did call the designated department before his shift that afternoon to request FMLA leave.  That department told Ballato he should call his supervisor.  Ballato did not do so.   When Ballato went to the building and was denied entrance because his badge was deactivated, he went home but did not call anyone at Comcast about the badge issue.

Because he believed that he had been fired, Ballato did not report to work as scheduled on the following Monday and Tuesday.   As a result, Comcast fired him for three consecutive unexcused absences.

Ballato alleged that Comcast had interfered with his rights under the FMLA.   The 8th Circuit noted, however, that the act does not impose “strict liability” on employers for interference claims.  Rather, if there is evidence of interference, the burden shifts to the employer to prove that there was a reason for the termination unrelated to the employee’s exercise of FMLA rights.  “An employee who requests FMLA leave has no greater protection against termination for reasons unrelated to the FMLA than she did before taking the leave.”

(The court also offered this nugget that will gladden the hearts of management lawyers and worry plaintiff’s attorneys: “The employer is not bound strictly to the reason provided to the employee for termination.”)


In the end, the court upheld Judge Tunheim’s grant of summary judgment because Ballato’s termination was consistent with Comcast’s three-day unexcused absence policy, and because Ballato had not tried to resolve any confusion over his status with the company.

The lesson for employees:  passive-aggressive behavior is not usually a winning legal strategy.  

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