Earlier this week, the 7th Circuit defined for the first time when the statute of limitations begins to run on FMLA claims that are based on an employee’s absenteeism policy which calls for progressive discipline.
In the case of Barrett v. Illinois Department of Corrections, October 20, 2015 the employer had a policy which called for progressive discipline for unauthorized absences which culminated in discharge of the employee after 12 of these unauthorized absences. The plaintiff was hired in 1995 and through her years of employment amassed a number of such unauthorized absences. She claimed at the time that certain absences in 2003, 2004 and 2005 should have been designated as FMLA leave, but her claims to the employer were denied at those times.
Through the years in question, including the years that the plaintiff claimed that her absences deserved FMLA protection, her employer issued progressive discipline to her. In 2010, the plaintiff reached a total of12 unauthorized absences and was fired. She filed suit, claiming that the Department of Corrections violated her FMLA rights when it refused to designate her 2003, 2004 and 2005 absences as FMLA leave which ultimately culminated in her discharge. Essentially, her claim was that but for the denial of FMLA designation of those absences, she would have not have reached 12 unauthorized absences and would have not been fired. The district court granted summary judgment for the employer DOC and the 7th Circuit affirmed.
The FMLA provides that an action for violation of its provisions must be brought no later than two years after the last event that constitutes a violation. The only absences that the plaintiff argued were FMLA protected were those in 2003, 4 and 5. Nevertheless, the plaintiff argued that the last event was her discharge because it was based in part on the employer’s alleged wrongful designation of those absences in violation of the FMLA. The 7th Circuit disagreed and simply interpreted the statute to mean that the “last event” for purposes of the statute of limitations was the last time an employer allegedly wrongfully denied the employee’s FMLA rights. In this case, the plaintiff’s suit was years too late.
This case not only clarifies when the clock starts ticking on FMLA claims, but is also a good reminder that the first analysis of any claim is whether it is timely filed. Employers should also take note to maintain all record of FMLA requests, as well as whether they were granted or denied. A claim for an FMLA violation could be defeated based on timeliness if the request was outside the statute of limitations even if the adverse action was more recent.
