Employee Fired for Leaving Store Without Telling Managers May Have Given Timely FMLA Notice a Day Later

September 12, 2017

A deli worker, who was fired for job abandonment the day she left the store without giving managers notice, raised triable issues on whether she provided "adequate and timely notice" that she was requesting Family and Medical Leave Act (FMLA) Leave based on evidence that her father called the next day to say she was seeking medical care and provided documentation two days after she left, ruled a federal district court in Missouri, denying the employer’s motion for summary judgment on her FMLA interference claim.

The same set of disputed facts prompted the court to also deny the employee’s motion for summary judgment on the employer’s affirmative defense that she abandoned her job.

Attendance issues. The employee began working for Cosentino’s in 2010, and was subject to a written "Attendance Policy" asking for advance notice to a department manager if an employee deems it necessary to leave during the work day. In September 2010, the employee received a verbal warning for leaving her shift early, and in October 2014, she received a "Final Written Warning" for violating the Attendance Policy. That written warning cited her "excessive absenteeism," including that she had left work early on four occasions in the preceding months. The form noted that there had been previous counseling on that issue, and the employee had been told that further incidents would result in termination.

Fired for leaving without notice. On October 15, 2014, the day after receiving that "Final Written Warning," the employee met with her managers who again told her she needed to complete her shifts, or notify a store manager if she needed to leave. After leaving the meeting, the employee allegedly felt ill, clocked out, and left the store before the end of her shift. She did not give the managers notice of her illness or that she was leaving, even though she walked past their office on her way out. She was terminated that day for abandoning her shift without notice.

Dad called in, provided documentation. The employee testified in deposition that she had regular appointments at a nearby medical center. Her father submitted an affidavit that the employee was treated at the medical center on October 15 and 16 and that he called the employer on the 16th and told the Assistant Manager that the employee was sick and under a doctor’s care. On the 17th, he delivered to the store manager: (1) a handwritten note to the HR Department to fill out a short-term sickness disability report; (2) a form from the medical center indicating the treatments the employee received; and (3) a statement from the employee that she was sick and could not return to work.

Lawsuit. The employee sued the employer, claiming the store fired her for exercising her FMLA rights, when it should have granted her medical leave. The employer moved for summary judgment, contending that the employee’s claim failed because she did not give adequate and timely notice of her alleged need for FMLA leave and that her employment was terminated for a reason unrelated to her alleged FMLA leave. The court denied the motion, finding disputed issues of fact as to each issue.

FMLA notice. The court cited authority providing that "when leave is needed for an unforeseeable event, notice is required as soon as practicable" and may be deemed sufficient if given within "one or two business days of when the need for leave becomes known." Because the employee’s father gave notice within that time frame, there was a triable issue on whether the notice was enough to trigger the employee’s FMLA rights. The employer argued that she could not establish that she gave timely or adequate notice because she had just met with her managers before leaving the store and had the opportunity to inform them of her illness as she was leaving, but the court cited the "totality of the circumstances" as requiring a trial to resolve the notice adequacy issue.

Failed to show discharge unrelated to FMLA. The employer also argued that the employee’s termination was based on her violation of the attendance policy, which occurred after several warnings, including the "Final Written Warning" stating that a further violation would result in termination. Despite having received this warning, the employee left the store without notifying management. But the court agreed with the employee that the same disputed questions about the adequacy of notice defeated this argument. The employee argued that if her notice to the employer is found to be adequate and timely, then her absence would be covered by the FMLA, with the result that she would not be in violation of the attendance policy by having left the store. The court found that given the disputed facts as to notice, the employer could not meet its burden to show that the discharge was warranted for a reason unrelated to the FMLA claim.