Wyatt Employment Law Report

FLMA Claim Dismissed Based On Employee’s Violation of Employer’s “Call-in” Policy

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By Michael D. Hornback

The U.S. Court of Appeals for the Sixth Circuit has dismissed a former employee’s Family Medical Leave Act (“FMLA”) interference claim because the employee failed to utilize her former employer’s call-in procedure related to absences. 

In Ritenour v. State of Tennessee Department of Human Services, 497 Fed. Appx. 521 (6th Cir. 2012), the plaintiff was initially hired as a interim employee, but later became a full-time Clerk with the Tennessee Department of Human Services (“TDHS”).  A few months after becoming a full-time employee, the plaintiff determined that she needed to take a leave of absence from her position to care for her son who suffered from a multitude of physical and mental health issues, including a bipolar disorder, suicide attempts, and behavior problems.  Thereafter, the plaintiff and her superiors had several conversations with regard to her request for leave; however, no leave was actually granted by TDHS.  Despite the plaintiff being absent from her employment for several weeks, the plaintiff and TDHS ultimately agreed that she would return to work on September 8, 2008.  Plaintiff was provided a copy of the employee handbook which detailed the necessary steps to take in order to request a leave of absence, including the requirement that such leave request be put in writing.  Plaintiff alleged that she put her request in writing; however, her superiors did not receive it.

The Plaintiff did not report to work from September 22 through 25, 2008 and she was ultimately terminated for job abandonment, which was defined as being absent from duty for more that three consecutive business days without giving notice to management and without securing permission to be on leave.  Additionally, the TDHS employee handbook required employees to personally notify their superior(s) by telephone if they were going to be late for or absent from work.  The plaintiff did not utilize this “call-in” procedure for her absences in September, 2008.

The plaintiff subsequently filed suit against TDHS, alleging interference with her right to take intermittent FMLA leave and retaliation under the FMLA.  The U.S. District Court for the Middle District of Tennessee granted summary judgment in favor of TDHS, finding that, even assuming the plaintiff was entitled to take FMLA leave, there was no dispute that she failed to contact her supervisor related to her absences in September, 2008.

The Sixth Circuit affirmed the dismissal of plaintiff’s claims, finding that it was undisputed that plaintiff failed to follow TDHS’ “call-in” procedure and the enforcement of the job abandonment policy was not related to plaintiff’s request for FMLA leave because the policy applied to employees who are absent from work without approval for any reason. 

It is also worth noting that the Sixth Circuit relied upon its previous decision in Allen v. Butler Cnty. Comm’rs, 331 Fed. Appx. 389 (6th Cir. 2009), in which it found that an employer could terminate an employee on FMLA leave for violating the more stringent requirements of a concurrently run paid sick leave policy, which included a “call-in” requirement.  The Allen court noted that because the “call-in” procedures established the obligations of employees on any type of leave, whether pursuant to FMLA or not, the employer therein was not liable for interfering with the employee’s right to take FMLA leave.


Leave a reply. Please note that although this blog may be helpful in informing clients and others who have an interest in information privacy and security, it is not intended to be legal advice. The information on this blog also should not be relied upon to form an attorney-client relationship.

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