Fired While Premature Baby Was Being Delivered, FMLA Claim Fails for Lack of Notice

April 10, 2017

In dismissing a FMLA interference claim by an employee who was fired during his child’s birth, a federal court explained that childbirth is a foreseeable event and the employee failed to give the required 30 days’ notice of the need for FMLA leave.

Even if the induction of labor three weeks early due to preeclampsia was unforeseeable, the employee did not give notice as soon as practicable—he only emailed after his supervisor repeatedly tried to contact him, and in that responsive email the employee made no mention of taking family leave.

The employee worked as a sales rep, demonstrating and fitting patients with medical devices designed to increase joint range of motion. In 2013, the employee and his partner were expecting a child; she was admitted to the hospital on February 19 with complications from preeclampsia and labor was induced. The employee’s supervisor, who had a personality that at times conflicted with the employee’s, had planned to ride along and observe sales calls on February 20. He tried several times in the preceding four days to confirm, but the employee did not respond until February 19, in a 9:00 p.m. email stating: “probably want to check with me and CONFIRM next time. We are in labor and delivery. There is no way we will be riding together tomorrow.” The employee was fired on February 20. His child was born the next day (three weeks premature).

Employee failed to give proper FMLA notice. Moving for summary judgment on the FMLA interference claim, the employer argued that the employee failed to give sufficient notice of the need for leave. Under relevant regulations, if the need for leave is foreseeable, such as an expected birth, an employee should give at least 30 days’ notice. If the need for leave is unforeseeable, he should give notice “as soon as practicable.” It is expected that notice will be given within one or two workdays after learning of the need for leave, except in extraordinary circumstances where notice is not feasible. Also, regulations provide that an “employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave.”

Here, the employee testified that he had not requested time off in advance, though the baby’s due date was only three weeks out. His supervisor’s first knowledge of his absence was on February 19, when the employee responded to the supervisor’s several attempts to contact him. The email was forwarded to HR, which asked for more information. The supervisor clarified that he knew the girlfriend was pregnant and due in March, but the employee did not say anything about seeking time off. Nor did the employee respond to the supervisor’s reply email on February 20 asking for an update and whether or not the employee had contacted the divisional office to advise that he needed time off.

In the court’s view, the birth of this child was a foreseeable medical event, and the employee should have given at least 30 days’ notice of his impending need for leave, but he did not. Even assuming the three-week premature delivery qualified as unforeseeable, the employee failed to provide notice as soon as practicable. While he and his family were under stress, it did not appear to be an immediate life-threatening scenario; his girlfriend was admitted after a routine doctor’s visit and the condition was monitored for over 24 hours. Not only did the employee not provide notice, but when the supervisor inquired on his status, the employee still did not respond and he remained out of communication until late on the 20th. Moreover, he did not follow-up with the divisional office. Absent proper notice, the employee’s FMLA interference claim failed.

No causal link to termination. Even assuming he did properly invoke his FMLA rights, no reasonable jury could find a causal connection between his exercise of rights and his termination, continued the court. The employer provided documentation, including an email trail, showing the employee was falling below performance expectations in multiple respects, including low sales numbers; trouble keeping track of his inventory as required; failing to provide dependable communication, such as returning calls and emails; and failing to timely complete and submit sales call logs. It had reached the point where his coworkers, superiors, and customers were all complaining of his failure to respond or communicate. He also violated company policy in 2012 by secretly recording a conversation with this supervisor.

By January 2013, the employee’s sales territory was cut in half and he was put on a performance improvement plan. On or about February 18, the decision was made to terminate him. “Despite the unfortunate timing of events,” concluded the court, the record was “replete” with the employee’s failure to meet employment criteria, and the process to terminate him began on February 18. Consequently, he could not show a causal link to his invoking FMLA rights.