In a recent decision, the Third Circuit Court of Appeals held that an employee is not obligated to actually take leave under the Family and Medical Leave Act (FMLA) in order to be able to recover upon a retaliation theory. 

In Erdman v. Nationwide Insurance Co., the plaintiff was terminated shortly after requesting leave under FMLA.  Alleging that Nationwide’s stated motives for her termination were pretextual and that she was actually fired for requesting leave, the plaintiff filed suit in federal district court for violation of the FMLA and other statutes. 

After the federal district court granted summary judgment in favor of Nationwide, the plaintiff appealed to the Third Circuit Court of Appeals.

To recover on a claim of retaliation under the FMLA, a plaintiff must demonstrate that: (1) he or she is protected under the FMLA, (2) he or she suffered an adverse employment action, and (3) the adverse action was causally related to the plaintiff’s exercise of his or her rights under the FMLA. 

Nationwide maintained that, because the plaintiff did not take the leave, she could not satisfy the first requirement. 

The appellate court initially noted that “it would be patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability simply by firing the employee before the leave begins” and that Nationwide’s position “would perversely allow a employer to limit an FMLA plaintiff's theories of recovery by preemptively firing her.” 

In dismissing Nationwide’s argument, the appellate court emphasized that it has never held that an employee fired after requesting leave under the FMLA but before the leave begins cannot recover for retaliation, nor could Nationwide cite any cases to support its position.  Ultimately, the appellate court interpreted the requirement that an employee “take” leave under the FMLA to connote “invocation of FMLA rights”, not actual commencement of leave, and held that firing an employee for a valid request for leave under the FMLA may constitute interference with the employee's rights under the FMLA as well as retaliation against the employee.

This newsletter is a publication of Nochumson P.C. and is intended for general information only. It should not be construed as legal advice with respect to any particular situation, and readers should not act upon information contained in this newsletter without first consulting an attorney. Copyright © 2009.