The 8th U.S. Circuit Court of Appeals recently upheld summary judgment in favor of an employer who discharged an employee for failing to follow a company policy requiring employees to call in each day during an extended absence. This ruling is notable because the employee previously had been granted leave under the FMLA. Bacon v. Hennepin County Medical Center, 8th Cir., No. 08-1237, Dec. 22, 2008.

Melondy Bacon was employed as a janitor by Hennepin County Medical Center (HCMC). In the summer of 2003, Bacon began periodically to break out in hives while at work. On July 8, 2004, Bacon obtained FMLA paperwork from HCMC, and had the paperwork completed by her physician. According to the doctor’s report, Bacon needed to take intermittent leave for a chronic skin irritation caused by chemicals at work. While the doctor was unable to specify the duration of the necessary intermittent leave, she predicted that Bacon would need treatment approximately once each month, and that 24 hours would be needed for recovery from such treatment. It is undisputed that Bacon’s medical documentation neither specified the length of time during which she would need intermittent leave nor provided a return-to-work date. Bacon submitted the paperwork to her supervisor, telling him that she was going to be on extended leave until she could get an appointment with an allergist.

During the following month, Bacon called HCMC each day on which she was scheduled to work, reporting that she had not yet seen the allergist, and that she would be absent on that particular day. Her absences were recorded by HCMC as FMLA-related. Bacon called in pursuant to HCMC’s policy which requires an employee on indefinite sick leave to call in every day to report an absence.

On August 5, 2004, Bacon stopped calling in to report her absences. On August 11, Bacon’s employment was terminated under a provision of the applicable union contract which states that three consecutive days of absence without notice is considered to be a resignation of employment. Bacon filed for unemployment benefits, explaining that her failure to continue calling in came after she “received information on the federal guidelines for FMLA which did not require any call ins.” Bacon subsequently filed suit in federal court, claiming that HCMC interfered with her rights under the FMLA by terminating her employment.

The district court granted summary judgment in favor of HCMC, and that dismissal was affirmed on appeal to the Eighth Circuit. The Eighth Circuit specifically held that an employer who takes an adverse action against an employee who is exercising FMLA rights will not be liable if the employer can prove that it would have made the same decision had the employee not exercised those rights.

Employers should recognize that HCMC took two actions that assured its ability to successfully defend against Bacon’s claim. First, its request for FMLA leave form requires the employee to acknowledge in writing that the HR policies and the prevailing labor agreement (including the call-in procedure) extend to FMLA leave. Second, HCMC’s employee handbook includes language that provides that the FMLA “does not change the County’s leave of absence procedures” and that the “Human Resources Rules and/or union contracts continue to apply.” Because HCMC had written policies that were consistently enforced, it was therefore able to show that the call-in procedure applied to all extended absences whether or not FMLA-related, and was able to prove definitely that it did not single out Bacon for disciplinary action because she was on FMLA leave.