Can an employee who receives all of his or her FMLA leave bring an FMLA interference claim?

No – a recent decision from the Third Circuit Court of Appeals once again confirms that an employee who receives all of the FMLA leave to which he or she is entitled does not have a viable claim for FMLA interference.

In Ross v. Gilhuly, a plaintiff asserted both interference and retaliation claims against his former employer under the Family and Medical Leave Act (FMLA). The plaintiff was initially put on a Performance Improvement Plan (PIP) before taking any FMLA leave. After finding out that he had prostate cancer, the employee then took approximately two months of FMLA leave. Following the employee’s return from leave, the employer extended the PIP and later terminated the employee for poor performance.

With respect to the plaintiff’s FMLA interference claim, the court held that an essential element of an interference claim is that a plaintiff must prove that “was denied benefits to which he or she was entitled under the FMLA.” Because the plaintiff received all of the FMLA leave to which he was entitled, the court dismissed the interference claim. The court explained that:

Ross’s argument that Gilhuly interfered with his entitlement to take FMLA leave free from later discrimination confuses interference with retaliation and is thus misdirected. At bottom, “[a]n interference action is not about discrimination[;] it is only about whether the employer provided the employee with the entitlements guaranteed by the FMLA.”

The court also dismissed the plaintiff’s retaliation claim. The court noted that the performance problems that resulted in the plaintiff’s termination began before he took FMLA leave. The court also explained that the timing of the termination did prove retaliation, particularly because the PIP was implemented before the FMLA leave began.

Takeaway: The Ross case is a good reminder that FMLA interference claims are not viable unless an employer withholds FMLA leave benefits from an employee without justification or otherwise prevents an employee from using FMLA leave to which he or she is entitled. FMLA retaliation claims, on the other hand, are generally based on allegations that an employer took an adverse action against an employee after he or she used FMLA leave.