Thursday, September 12, 2019

It’s hard to win a lawsuit when you admit you don’t have a case

James Scott’s employer fired him for accumulating 10 points under its no-fault attendance policy. He claimed FMLA retaliation, alleging that his employer unlawfully assessed some of his points while he was taking FMLA-protected leave to care for his ill wife.

At his deposition, however, Scott admitted that the FMLA had nothing whatsoever to do with his termination.

Q. Paragraph 31 [of the complaint] says that you believe that your FMLA leave to attend to your wife was a motivating factor in Great Lakes Cheese’s decision to discharge you versus other individuals. What is the basis of this belief?
A. I don’t believe that, no.
Q. You don’t?
A. I never did believe that.
Q. You don’t think they considered your FMLA leave to terminate you?
A. No, because I went back to work after my wife passed. . . .
Q. Your allegation in this [ ] lawsuit is you took time off to care for your wife?
A. Right.
Q. Which was protected by FMLA leave?
A. Yes.
Q. Because you took that time off, Great Lakes Cheese decided to terminate you. Do you believe that is the case?
A. No.

Q. You don’t believe that Great Lakes Cheese terminated you because you took FMLA leave to care for your wife, correct?
A. Correct.

Case dismissed.

Scott was correct that an employer must make an exception to its no-fault attendance policy for FMLA-protected absences. Because the FMLA prohibits employers from “interfering with, restraining, or denying” an employee’s exercise of FMLA rights, employers cannot count FMLA leave under no-fault attendance policies, and employees cannot accrue points for taking FMLA leave under no-fault policies. The Department of Labor re-affirmed these well-worn principles in an Opinion Letter last year.

While all of this is legally correct, it’s awfully hard for an employee to win his case, let alone survive a summary judgment motion, when he admits that his FMLA leave played no role in his employer’s decision to terminate.

* Image by Ulrike Leone from Pixabay