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Notifying Employer of Intent to Take FMLA Leave is Protected Activity under the FMLA: Tenth Circuit
Practical Law Legal Update 5-525-3565 (Approx. 3 pages)
Notifying Employer of Intent to Take FMLA Leave is Protected Activity under the FMLA: Tenth Circuit
by PLC Labor & Employment
| Published on 21 Mar 2013 • USA (National/Federal) |
In Wehrley v. American Family Mutual Insurance Co., the US Court of Appeals for the Tenth Circuit joins the Third, Sixth and Eleventh Circuits in holding that giving an employer notice of intent to take FMLA leave is protected activity for purposes of an FMLA retaliation claim.
On March 18, 2013, the US Court of Appeals for the Tenth Circuit issued an opinion in Wehrley v. American Family Mutual Insurance Co., holding that giving an employer notice of intent to take FMLA leave is protected activity for purposes of an FMLA retaliation claim.
The plaintiff, Wehrley, had been a property claims insurance adjuster for American Family Mutual Insurance Company. In 2007, he injured his knee and back in the course of a roof inspection. Eventually, his supervisor terminated him because of his inability to do roof inspections, which is an essential part of the adjuster position.
Wehrley filed a lawsuit against the company, alleging, among other claims, that his employer retaliated against him for engaging in protected activity under the FMLA.
The district court granted summary judgment in favor of the company. The district court rejected Wehrley's FMLA retaliation claim because:
- Wehrley did not engage in protected activity because he never actually took FMLA leave.
- In the alternative, Wehrley failed to establish a causal connection between the protected activity and the firing.
The Tenth Circuit affirmed the district court's decision, and Wehrley filed a petition for a panel rehearing and rehearing en banc. The Tenth Circuit granted Wehrley's petition for a panel rehearing, reviewing the district court's grant of summary judgment on all of Wehrley's claims de novo.
On March 18, 2013, the Tenth Circuit issued a new decision in this case, holding that giving an employer notice of intent to take FMLA leave is protected activity for purposes of an FMLA retaliation claim. (The Tenth Circuit noted that this unpublished decision is not binding precedent, but it can be cited for its persuasive value.) The Tenth Circuit explained that FMLA retaliation claims are subject to the McDonnell Douglas burden-shifting analysis. To make out a prima facie case, Wehrley must show that:
- He engaged in a protected activity.
- His employer took a materially adverse action.
- A causal connection exists between the protected activity and the adverse action.
After noting that three other circuits (the Third, Sixth and Eleventh) had concluded that notifying an employer of intent to take FMLA leave is protected activity, the court explained its rationale for following the circuits:
- The FMLA requires an employee to provide his employer "not less than 30 days' notice" before taking leave for foreseeable medical treatment. Because the FMLA expressly requires this notice, giving an employer such notice reasonably must be "protected activity."
- Any other view would allow an employer to retaliate against an employee during the 30 or more days prior to his taking FMLA leave.
The Tenth Circuit held that an employee who gives an employer notice of intent to take FMLA leave, at least where the employee qualifies for that leave, engages in protected activity for purposes of an FMLA retaliation claim. Therefore, Wehrley did engage in protected activity under the FMLA, even though he never took FMLA leave, because he gave notice to his employer of his intent to take that leave.
Employers in the Tenth Circuit should be aware that employees notifying them of intent to take FMLA leave are engaging in protected activity.
Court documents: