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LABOR & EMPLOYMENT LAW — 9/23/08

Employee shy of FMLA eligibility by 1.2 hours

The Seventh Circuit Court of Appeals ruled that an employee was ineligible for FMLA leave after it was shown she had only worked 1,248.8 hours, and not the statutorily required 1,250 hours in a 12-month period. On appeal, the employee argued that a previous suspension, in which she had to leave work two hours early, was improper, and that she should be credited with those two hours. The appellate court, however, found that she never grieved the suspension within the allotted 15 day period, and she was then left with only "an unsubstantiated subjective belief that her...suspension was wrongful," and this was not enough to create a genuine issue of material fact for trial (Pirant v US Postal Service, 7thCir, 156 LC ¶35,475).

The employee had a tumultuous employment history with her employer due to a poor attendance record, and was suspended multiple times. She was finally given a "last chance" agreement in March 2001, which she signed. Only a few months later, the employee again took an unexcused absence. She was set to be terminated in September, but convinced her employer to hold the termination in abeyance until December. While in abeyance, in October she was ordered to leave work two hours early, as it was claimed she was being insubordinate and not doing her work.

In December, the employee again missed work for several days, but she did call in reporting her absences. Upon returning to work, she brought in a doctor's note stating she could not work December 10-17. On December 21, the employer informed the employee she could still grieve her dismissal in October, but had 15 days to do so. The employee did not grieve this action within the allotted time. In January the employee was terminated for violating the last-chance agreement. The employee then submitted doctor's notes stating why she was absent in December, and on January 23 she filed a complaint for back pay regarding the October clock-out incident.

The employee then filed a complaint alleging the employer violated her FMLA rights by terminating her for missing work in December due to her arthritic knee. In an amended answer, the employer moved for summary judgment asserting that the employee had not worked the required 1,250 hours in a 12-month period, and was therefore ineligible for FMLA leave. The payroll records indicated that the employee was credited for working 1,248.8 hours, and as such, fell short of FMLA eligibility. The district court, noting that the employee did not reach the 1,250 hours worked threshold, granted summary judgment. On appeal, the employee contended that the two hours she lost due to the October suspension should be counted.

In affirming the district court ruling, the appellate court found that the employee presented no evidence to refute the accuracy of the employer's payroll records. As such, while the difference in hours was minimal (only 1.2 hours), the rules state that FMLA eligibility requires 1,250 hours worked in a 12-month period. In addition, the employee's argument regarding the two hours of work lost in October also fell flat. Although the two hours, if added, would have made the employee FMLA eligible, the employee never grieved the suspension within the allotted time period. The employee only grieved this suspension after she was terminated, long after the 15-day period had expired. The appellate court concluded then, that the employee was left with only a subjective belief that her suspension in October was improper, and so there being no triable issue of fact to argue, the grant of summary judgment was affirmed.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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