FMLA Limitations Period Runs from Denial of Leave Not Later Termination Date for Unauthorized Absences: Seventh Circuit

Practical Law Legal Update 8-619-6313 (Approx. 5 pages)

FMLA Limitations Period Runs from Denial of Leave Not Later Termination Date for Unauthorized Absences: Seventh Circuit

by Practical Law Labor & Employment

Background

Cindy Barrett worked for the Illinois Department of Corrections (IDOC). From December 2003 through May 2010, Barrett accumulated twelve unauthorized absences. For three absences that occurred during 2003, 2004 and 2005, Barrett notified her supervisor in advance that she was going to be absent, IDOC found her absent without authorization, and Barrett unsuccessfully challenged IDOC's decision before its Employee Review Board.

In October 2012, Barrett's employment was terminated for violating IDOC's policy, which subjected employees who accumulated twelve unuathorized absences to termination. In January 2012, Barrett sued IDOC in US district court for violating her FMLA rights. Barrett claimed that the three unauthorized absences she had challenged from 2003 to 2005 were protected leave under the FMLA for which IDOC improperly denied her leave requests. The district court granted summary judgment to IDOC on Barrett's FMLA claim, finding her suit untimely under the FMLA because the alleged instances in which IDOC improperly denied Barrett's FMLA leave requests occurred more than two years before she filed suit. Barrett appealed to the Seventh Circuit Court of Appeals.

Outcome

The Seventh Circuit affirmed the district court's grant of summary judgment to IDOC, holding that the FMLA's two-year statute of limitations runs from the date of the employer's last alleged FMLA violation, not from the date an employee is terminated for violating an absenteeism policy that may have included FMLA-protected absences outside the statute of limitations period.

The Seventh Circuit noted that:

The FMLA's two-year statute of limitations runs from the date of the "last event" constituting the alleged FMLA violation (29 U.S.C. § 2617(c)(1)).
The last event in an FMLA claim involving an employee alleging that an employer denied protected FMLA leave is the employer's denial of the employee’s protected leave request.
The little authority on this issue points in divergent directions. For example:
- the Eighth Circuit held that employers violate the FMLA when improperly denying an employee's leave request, not when terminating the employee for excessive absenteeism (Reed v. Lear Corp., 556 F.3d 674, 681 (8th Cir. 2009)); and
- the Sixth Circuit allowed an employee to proceed with an FMLA claim challenging her termination even though the absences she claimed were FMLA-protected occurred well outside the two-year statute of limitations period (Butler v. Owens-Brockway Plastics Prods., Inc., 199 F.3d 314, 317 (6th Cir. 1999)).

The Seventh Circuit found that:

The contrasting Reed and Butler decisions from the Eighth and Sixth Circuits were not helpful because those courts did not engage in a comprehensive FMLA analysis.
Barrett's FMLA claim accrued, and the FMLA statute of limitations began to run, each time the Employee Review Board denied Barrett's challenge of IDOC's finding that her absences were unexcused. Since that last occurred in 2005, the two-year statute of limitations on Barrett's FMLA claim ran long before she filed her claim in 2012.
Barrett's termination was not the "last event" in which her FMLA rights were violated.
The FMLA does not provide for open-ended tolling of the statute of limitations in which an employee can hold off on filing suit when denied leave for certain absences and then file suit many years later when terminated over those absences.
Analogizing the FMLA with Title VII for statute of limitations purposes as the district court did was not useful because:
- the statutes are different, with the FMLA focused on providing a benefit to employees and Title VII focused on prohibiting discrimination against employees;
- Title VII's statute of limitations relates to an adverse employment action taken by the employer while the FMLA's statute of limitations relates to the last event in which an employee's FMLA leave rights were impaired; and
- applying Title VII statute of limitations rules would not rescue Barrett's claim anyway because the statute of limitations begins to run from the day a discrete act happened under Title VII, and the continuing violation exception does not apply because Barrett's claim was not analogous to a hostile work environment claim.

Practical Implications

The Seventh Circuit's decision in Barrett holds, as a matter of first impression in the circuit, that the FMLA statute of limitations runs from the date the employer last denied the employee's FMLA leave request, not from the date the employee was terminated for unexcused absences that may have included FMLA-protected absences occurring more than two years before the FMLA action was filed. This is an important distinction for counsel to keep in mind when defending an employer against an FMLA claim. In any FMLA litigation, counsel should evaluate whether a viable statute of limitations defense exists by determining when the actual last alleged FMLA violation occurred.

FMLA Limitations Period Runs from Denial of Leave Not Later Termination Date for Unauthorized Absences: Seventh Circuit | Practical Law