According to a recent ruling by the 9th Circuit Court of Appeals, an employee may have a valid wrongful discharge claim under the FMLA even if she fails to actually request FMLA leave, based upon evidence that her employer was aware that she had cancer and discussed whether she had taken FMLA leave shortly before her termination. Kinney v. Holiday Companies.

The Facts:

Sally Kinney worked as a cashier at a Holiday gas station. Kinney had been in and out of treatment for kidney cancer since 1997. She took unpaid FMLA leave in May 2005 and again in 2006. In February 2007, Kinney began chemotherapy. On March 13, 2007, Kinney was scheduled to work from 5:00 a.m. to 10:00 p.m. She claims that she was feeling tired and sick and "did not want to be there that day." Nevertheless, she went to work. Upon arrival, she told her manager, Luisa Nadore, that she wasn't feeling good and wanted to go home. She asked Nadore if she could find someone else to come in. Nadore said she would try. After that, neither Nadore nor Kinney brought up the issue of whether Kinney would finish working that day.

On the same day, Holiday sent a secret shopper to the store to check compliance with the company's tobacco sales policy. Kinney violated company policy by failing to card the secret shopper. According to Holiday, this was Kinney's second tobacco compliance violation within a year. Kinney's employment was terminated on March 16, 2007.

The Lawsuit:

Kinney filed suit in federal district court, alleging that Holiday violated the FMLA by denying her request for medical leave and that it interfered with her right to seek leave under the FMLA. The district court granted Holiday's motion for summary judgment, finding that Kinney's statement that she was not feeling good and wanted to go home was not sufficient notice of her need for FMLA leave. The court further rejected Kinney's argument that Holiday interfered with her FMLA rights by not immediately allowing her to leave work upon request, noting that "[t]he statute cannot possibly require what Kinney says it does, which is that an employer must decide within hours or minutes whether an employee qualifies for leave under the FMLA."

Kinney appealed to the 9th Circuit Court of Appeals. The 9th Circuit affirmed the district court's ruling with respect to Kinney's claim that Holiday violated the FMLA by denying her request for leave on March 13, 2007. The court noted that Kinney "conditioned her request on her manager's finding a replacement worker, which her manager apparently did not or could not do." Further, the court found that even if Kinney's request had been unconditional, Kinney failed to adequately explain the reason she needed leave in a manner that would put Holiday on notice that her leave might qualify as FMLA.

However, the 9th Circuit found that the district court erred in failing to consider whether Kinney's prior and prospective FMLA leaves played a role in Holiday's decision to terminate her employment. According to the Court, Kinney had a valid FMLA termination claim if she could "show that Holiday used her 2005 and 2006 FMLA-covered absences, in conjunction with its awareness that her illness might require more medical leave in the future, as a "negative factor" in its decision to fire her."

The court went on to hold that Kinney presented sufficient evidence that her FMLA leave was a factor in her termination based upon the following factors:

  • Holiday fired Kinney shortly after her cancer's recurrence;
  • Holiday managers involved in the termination decision were aware of her cancer;
  • The same managers discussed whether Kinney had taken FMLA leave shortly before she was terminated.

Further, while the court acknowledged that Holiday claimed to have fired Kinney for failing to card a customer purchasing tobacco, it found that there was "conflicting evidence as to whether Kinney's first tobacco-sale violation occurred at all," which could only be resolved by a jury at trial.

Insights for Employers:

  • While the 9th Circuit decision does not specify what "conflicting evidence" existed as to Kinney's first violation of the tobacco sale policy, employers should keep in mind that if a termination is based in part upon prior misconduct that cannot be clearly proven, this could make it difficult to defeat a wrongful discharge claim before going to a jury trial.
  • The court's analysis of Kinney's leave request is helpful to employers. If an employee simply says she is feeling "ill" without further information, that is not sufficient notice that the employee needs FMLA leave.
  • On the other hand, if the employee had mentioned her cancer treatment and stated that she was unable to work due to side effects of chemotherapy, the proper response would likely have been to permit her to go home, and then to follow up by presenting her with the required FMLA notices and requesting medical certification.