BAILEY v. PREGIS INNOVATIVE PACKAGING (April 2, 2010)

Michelle Bailey was employed by the defendant Pregis Innovative Packaging -- that is, until they terminated her for accumulating too many absenteeism points during a 12-month period. She brought suit against Pregis under the Family and Medical Leave Act. The district court granted summary judgment to Pregis. Bailey appeals.

In their opinion, Judges Posner, Manion, and Hamilton affirmed. The Court noted the two issues raised by the appeal: a) whether the 12-month period during which an employee must accumulate 1,250 hours of service to be entitled to take leave is tolled during a period of leave, and whether Pregis retaliated against Bailey by not including leave time in its own policy of removing absenteeism points twelve months after they are imposed. The Court rejected Bailey's position on the first issue. Although it found no precedent, it also found no basis for the tolling in the statute and also found comfort in the line of cases that refused to adopt an expansive definition of the term "service" in the Act. Thus, Bailey is not entitled to "service" credit for a number of days preceding the twelve month period equal to her number of days of leave. With respect to the second issue, the Court first addressed whether the employer's policy of removing absenteeism points is an “employment benefit" under the Act. Although it gave no weight to a Department of Labor opinion letter concluding that such a policy is an "employment benefit" because the letter contained no reasoning, it concluded on its own that the letter reached the right result. Even if it is an employment benefit, however, the Court noted that the Act provides that taking leave cannot result in the loss of employment benefit that has already accrued. Benefits that have not already accrued are not protected. For example, the Act specifically provides that an employee on leave does not accrue seniority. For much the same reason, an employee on leave does not accrue service days toward the twelve months after which the employer forgives an absentee day.