Proper application of Family Medical Leave Act (“FMLA”) is frustrating for employers. However, if it is handled properly, claims of FMLA interference or retaliation can be defended. McClelland v. CommunityCare HMO, Inc. an unpublished Tenth Circuit opinion and its district court case, provides good guidance on appropriate process and procedure to protect employers on the application of FMLA.

The Background1

Teresa McClelland was hired as a billing specialist for CommunityCare HMO, Inc. in 2002. At the time she was hired McClelland received a copy of CommunityCare’s FMLA policy. She also received copies of the policy each time she requested FMLA leave. McClelland had received at least 11 copies of the policy during her employment.

Pursuant to the FMLA, CommunityCare’s policy provided that an employee was eligible to take up to 12 weeks of leave within a 12-month period and that an employee can request leave when his or her own health condition prevents him or her from performing the essential functions of the job. The policy also provided that if an employee fails to return upon expiration of the FMLA leave, the employee is subject to termination unless he or she receives an extension. The provisions to request an extension of leave were very specific and required that they must be submitted in writing to the employee’s immediate supervisor and the human resources director and provide a medical certification establishing the need for the extension.

In July 2009 McClelland requested nine to twelve weeks of FMLA leave from her employer for left knee replacement surgery that was scheduled for October 6, 2009. Shortly after that, in August McClelland injured her right knee and used 64 hours of leave. Prior to the incidents leading up to this complaint, McClelland had taken FMLA leave on multiple occasions. McClelland knew that if she took leave in August it would reduce the amount of leave she had available following her knee replacement surgery. On September 3rd, CommunityCare’s human resource manager sent McClelland a letter advising her that the 64 hours she took in August would be deducted from her available 480 hours of leave. McClelland received the letter and was aware that she only had 416 hours of leave remaining.

Shortly thereafter, on October 5th the day before her scheduled surgery, McClelland had a phone conversation with CommunityCare’s human resource manager. She was again advised she only had 416 hours of FMLA leave remaining. It was also recognized that she had originally planned to be out until December 28, 2009. An inquiry was made as to whether any accommodations could be made that would allow her doctor to release her earlier than December 28th.

On November 13, 2009, about five weeks after surgery, CommunityCare sent McClelland a letter stating she only had 184 hours of leave left and that she had to make arrangements to return to work on or before December 16, 2009. It was also noted that she would have been able to take leave until December 28, 2009, as originally planned, if she had not take FMLA leave in August.

On December 1, 2009, McClelland talked with her supervisor. She was encouraged to talk with her doctor about returning to work by the 16th. A couple of days later, McClelland inquired of her supervisor about extending her leave and stated that the earliest she could return to work was January 4, 2010. The supervisor responded informing McClelland how to proceed. McClelland knew that she would be required to provide a medical certification explaining the necessity of the extension and exact return date. On December 3, 2010 (the same day she made the inquiry) McClelland e-mailed the Vice President of Human Resources requesting extended leave. She did not include a medical certification. The Vice President of Human Resources contacted her and asked if there was any way that she could return earlier even with work restrictions. McClelland would not agree to provide a specific return date and would not agree to return until she spoke with her doctor. McClelland did not speak to her doctor until January 11, 2010.

CommunityCare sent McClelland a letter on December 8, 2009 informing her that her request for extension of FMLA leave could not be accommodated and her employment would be terminated if she could not return to work on December 16, 2009. She was also offered the opportunity to reapply for employment with CommunityCare for any open position. McClelland’s employment was then terminated on December 16th.

McClelland subsequently filed the complaint asserting that she was terminated in violation of FMLA. She did not specify whether she was seeking relief under an FMLA termination or interference theory. The district court granted summary judgment for CommunityCare. The Tenth Circuit affirmed the district court.

The Decision

In determining whether there was interference with FMLA it must be shown: (1) the employee was entitled to FMLA leave; (2) that some adverse action by the employer interfered with the employee’s right to take FMLA leave; and (3) that the employer’s action was related to the exercise or attempted exercise of the employee’s FMLA rights.2 And, although the amount of leave an employee is entitled to receive is set by statute, an employer is permitted to select the method of calculating leave: (1) calendar year; (2) any fixed twelve-month “leave-year”; (3) twelve-month period measured forward from date of employee’s first FMLA leave; or (4) “rolling” 12-month period measured backward from the date an employee first uses any FMLA leave.3 CommunityCare used the rolling twelve-month period to calculate available FMLA leave.

The basis of McClelland’s argument is that CommunityCare misrepresented to her that she had enough time for her surgery and that this interfered with her rights as she relied on this representation in scheduling her surgery. McClelland tried to argue that after the October 5, 2009 phone conversation she believed she had enough time for her surgery. However McClelland was not able to get over the fact that in September 2009, CommunityCare informed her that she only had 416 hours remaining and she testified at deposition that she understood this. McClelland tried to refute her deposition testimony that she could not remember the October 5th conversation with an affidavit. The court found that this was not sufficient to controvert CommunityCare’s written notice and McClelland’s deposition testimony that she understood at the time of her surgery she only had 416 hours of FMLA available.

Although McClelland argued that CommunityCare should have extended her leave, this is not statutorily required. This does not establish that CommunityCare took any adverse action that interfered with the right to use leave.

The court also considered the case under retaliation. McClelland asserted that the CommunityCare’s reason for terminating her was pretext for retaliation. To establish retaliation, an employee must show: (1) she availed herself of a protected right under FMLA; (2) she was adversely affected by an employment decision; and (3) that there was a causal connection between the two actions.4 The court found that McClelland met the first two elements and as such the burden shifted to CommunityCare to offer a legitimate reason for her termination.

CommunityCare met this burden. The letter that was sent to McClelland stated it terminated her as she had exhausted her FMLA leave and she was unable to return to work. McClelland testified that she does not dispute that CommunityCare’s policy states that an employee is subject to termination if she fails to return to work at the expiration of FMLA leave. Additionally, the court noted that CommunityCare encouraged McClelland to return to work prior to December 16th and offered to provide her with the necessary accommodations to do so. The court found that this was not retaliation.

FMLA allows an employer to terminate an employee who cannot return after twelve weeks of leave. The failure to return to work at the expiration of FMLA leave was a legitimate non-retaliatory reason for termination. At this point, the burden shifted back to McClelland to show that the termination was pre-textual. McClelland could not meet this burden. The essence of McClelland’s argument was that CommunityCare did not need to exercise the right to terminate her. This was insufficient to establish pretext to defeat summary judgment.

The Take Away

CommunityCare did a number of things right to be able to have the case resolved at the summary judgment stage in its favor.

Clear Communication

First, CommunityCare clearly communicated the leave policy. There was no question in the case about how leave was calculated. Nor was there a question about what would occur if the employee exhausted her leave and did not return to work. Additionally, the extension request requirements were clearly communicated to the employee. These requirements were both in the policy and communicated by the supervisor.

Regular Communication

When the employee was hired information was provided on the FMLA policy. Additionally, any time an employee requested FMLA leave another copy of the policy was given him. Specifically, as to McClelland, the employer maintained regular communication with her. After her unexpected leave in August (which was after her leave request for surgery which was submitted in July), the employee was advised of the total remaining leave that would be available in October which was the date scheduled for surgery. Even more helpful, this communication was in writing.

Timely Communication

The employer timely communicated with the employee. Just after the employee used FMLA leave in August the employer notified her of the remaining available leave for her October surgery. Additionally, the facts show that when McClelland e-mailed or submitted a request it was handled promptly. Although this was not specifically discussed in the opinion as a basis for the grant of summary judgment, the court was very methodical about setting forth the time frames in the recitation of the facts. It was clear that the employer did not put off or neglect the inquiries of the employee. Additionally, the month before her leave was to exhaust and one week prior to final deadline, the employer sent a written letter providing the return date and reminding the employee that she may be subject to termination if she did not return.

Consistent Communication

In attempting to assert retaliation, the employee urged the court to consider that the employer did not have to terminate her and could have extended her leave request. The court recognized that the statute did not require the employer to extend an employee’s leave. Additionally, the FMLA policy provided to the employee was clear that the result of not returning at the exhaustion of FLMA leave is termination. And, this message was specifically and consistently conveyed in the communications with the employee. Although the employee attempted to assert there was confusion about how much leave she had left, and that she would not have had the surgery had she known she would have to return on the 16th, there was no communication from the employer which supported this assertion.

Accommodating Communication

Finally, the facts support that the employer was trying to work with the employee. It offered to accommodate her with fewer work hours or allowing for work restrictions if she would come back by the 16th – the exhaustion date. Although this was not a specific basis for granting the summary judgment in favor of the employer, it goes more to the defense that the termination was not pretext for the use of FMLA. It seemed the court found the employee’s actions supported a determination that the employer made a good faith effort of working with the employee to have her come back and not have to terminate her.

Conclusion

As prefaced, administering FMLA leave can be frustrating. However, by providing regular, consistent, clear and timely communication an employer can be in a good position to defend itself against claims of FMLA interference. ■

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1. The facts are taken from the district court opinion McClelland v. CommunityCare HMO, Inc., 2012 WL 681455 (N.D.Okla. Feb. 29, 2012).

2. 2012 WL 681455 at page 7.

3. Id.

4. 2012 WL 5951622 at page 6.