In a recent decision, the US Court of Appeals for the Eighth Circuit dismissed a claim for interference under the Family and Medical Leave Act (the FMLA) by a “rotational” worker who was terminated after exhausting 12 weeks of leave, even though he was not otherwise scheduled to work during half of those weeks. Murphy v. John Christner Trucking, LLC, 2012 WL 3428872 (N.D. Okla. August 15, 2012).
Randy Murphy was employed as a nighttime extended coverage dispatcher and dispatcher supervisor by John Christner Trucking (JCT) from 1998 until December 25, 2010. In September 2010, he was diagnosed with deep vein thrombosis. He underwent angioplasty and subsequently had emergency surgery to insert a stent. During that time, he requested and used FMLA time off. JCT terminated his employment effective December 25, 2010, on the grounds that he had exhausted his FMLA leave. Murphy sued JCT, asserting claims for among other things, unlawful interference with leave under the FMLA. The parties filed cross motions for summary judgment.
Murphy’s schedule was fixed at seven days on, seven days off, Monday through Sunday, and had been for more than four years prior to his taking FMLA; he was scheduled to work 84 hours a week during his work weeks. Murphy took his initial FMLA medical leave beginning on September 20, 2010, due to a venogram and angioplasty. He was released by his doctor and returned to work on October 4, 2010. He went back out on FMLA leave beginning on October 25, 2010. He never returned to work after that date.
JCT’s employee handbook provides that employees eligible for FMLA leave are entitled to up to 12 weeks of job protected FMLA leave per year. Murphy acknowledged in his deposition that the handbook provides, “if an employee fails to return to work from FMLA leave or fails to request an extension of the FMLA leave, the employee may be considered to have abandoned his or her job and it may be considered a voluntary termination of employment.”
JCT calculated Murphy’s FMLA leave as follows: 12 hours per day times seven days per week equals 84 hours per week divided by two for an average of 42 hours per week; 42 hours per week times 12 weeks equals 504 hours. JCT applied the FMLA leave time to weeks Murphy would ordinarily have been scheduled to be off work.
According to JCT’s calculations, Murphy’s FMLA leave expired on December 26, 2010. Murphy testified that Lori Loy, JCT human resources manager, advised him in a phone call on December 21, 2010, that he would be discharged from employment with JCT effective December 25, 2010 (mistakenly instead of December 26), due to the expiration of his FMLA leave. In a letter to Murphy dated December 22, 2010, Loy stated, in pertinent part:
Your Family Medical Leave of Absence is scheduled to end on December 25, 2010.
In accordance with our FMLA policy and as is permitted by FMLA regulation, we require all employees on leave to provide notice of their intent to return to work. This notice was mailed to you on October 28, 2010 along with your rights and responsibilities.
Because you are unable to return to work at the end of your FMLA leave, your absence isn’t covered under protections.
Murphy’s FMLA leave expired on December 26, 2010. His doctor did not release him to return to work until December 28, 2010.
The Court’s Analysis
The FMLA allows qualified employees to take up to 12 weeks of leave during a 12–month period if “a serious health condition ... makes the employee unable to perform the functions of the position of such employee.” Under the FMLA, it is unlawful “for any employer to interfere with, restrain, or deny the exercise of” rights provided by the FMLA. A prima facie claim for FLMA interference requires a showing that (1) plaintiff was entitled to FMLA leave; (2) some adverse action by the employer interfered with the employee’s right to take FMLA leave; and (3) the employer’s action was related to the exercise or attempted exercise of the employee’s FMLA rights. A denial, interference or restraint of FMLA rights is a violation regardless of the employer’s intent.
At issue was whether the second and third elements of the prima facie case had been met. This, in turn depended on whether JCT correctly calculated and applied Murphy’s FMLA leave time. Murphy argued that since he ordinarily worked one week on/one week off, FMLA leave time should not have been charged against weeks during which he would not have been scheduled to work. JCT countered that nothing in the FMLA or its implementing regulations prohibited it from applying FMLA leave time against weeks during which Murphy would ordinarily have been off duty.
Resolution of the issue was critical, because if Murphy’s interpretation was correct, his 12 weeks of FMLA leave time would not have expired December 26, 2010, as JCT asserted, but rather nearly 12 weeks after his December 28, 2010, release to return to work. JCT asserted that it was permitted to, and did, choose one of four methods for calculating FMLA leave time.
The relevant section of the FMLA, 29 U.S.C. § 2612(a)(1), states in pertinent part that “an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12–month period . . .”. The implementing regulation, 29 C.F.R. § 825.200, provides, in pertinent part:
“(a) . . . an eligible employee’s FMLA leave entitlement is limited to a total of 12 workweeks of leave during any 12–month period . . .” (emphasis added).
In contrast, Section 2612(b) of the FMLA addresses “leave taken intermittently or on a reduced leave schedule.” Section 2612(b) explicitly states, “The taking of leave intermittently or on a reduced leave schedule pursuant to this paragraph shall not result in a reduction in the total amount of leave to which the employee is entitled under subsection (a) beyond the amount of leave actually taken.” (emphasis added). Implementing regulations related to § 2612(b) restrict employers from applying FMLA leave time to periods of time when the employee would ordinarily not be scheduled to work.
According to the Eight Circuit, it is a cardinal doctrine of statutory construction that “in all enactments every choice of words [is presumed to be] purposeful, manifesting legislative intent to convey particular meaning, and that statutory use of different terms evinces intent to express different meanings.” Section 2612(a)(1) and its implementing regulation, 29 C.F.R. § 825.200, reference “workweeks,” but make no mention of “the amount of leave actually taken” or the “actual workweek.” Applying the canons of construction, the court “somewhat reluctantly” concluded that the legislature’s choice of language was deliberate. “If Congress had intended to restrict the employer’s application of FMLA leave time under § 2612(a)(1) to only those weeks during which rotational employees would actually be on duty, it would have included language similar to § 2612(b). It did not do so.”
Thus, the court concluded that JCT’s calculation and application of Murphy’s leave time did not violate the FMLA and it dismissed the claim.
The Murphy case is a positive development for employers in the Eighth Circuit, which includes the following states: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota. However, it is unclear whether federal courts in other states would reach the same decision.
In addition, employers generally should not automatically terminate an employee who fails to return immediately after his or her 12-week FMLA leave entitlement is exhausted. Instead, the employer must first determine whether the employee has a disability under the Americans with Disabilities Act (the ADA) and if so engage in an interactive process with the employee to determine if it would be a reasonable accommodation to grant the employee additional unpaid leave.
The Arent Fox Labor & Employment Group regularly advises clients on FMLA and ADA matters, and defends them in the litigation of claims under these laws. If you have any questions about the Murphy case or the FMLA or the ADA, please feel free to contact the author or any other member of the Group.