The 8th U.S. Circuit Court of Appeals has held that an employee who was fired for repeatedly violating her employer’s call-in policy cannot proceed with her lawsuit under the FMLA. Thompson v. CenturyTel of Central Arkansas,LLC, 8th Cir, No. 09-3602, December 3, 2010.
Loretta Thompson began working for CenturyTel, a telecommunications company, in 2003. In 2006, Thompson began reporting to Carolyn Wilson, a Programming Supervisor. When Thompson began her employment, she received an employee handbook that included a call-in policy that required employees to call the supervisor each day during a period of absence. Any employee who failed to provide proper and timely notice for three consecutive workdays, or for three separate workdays during a 12-month period was deemed to have voluntarily terminated employment. Thompson also acknowledged receiving written departmental policies that included the call-in policy in 2006, 2007, and 2008. The departmental policies specifically provided that call-ins were to be made directly to Wilson and, if Wilson was unavailable, that a voice mail message was to be left for Wilson, notifying her of the absence. Wilson also permitted her employees to call in weekly, once a formal approval of FMLA leave had been issued.
In the summer of 2007, Thompson applied for and received a four-week FMLA leave. During this period, Thompson failed to call in as required. Once she returned from the leave, Wilson gave a verbal warning to her, and reminded her of the company’s call-in policy.
On April 30, 2007, Thompson did not report to work and did not call in to report her absence for that day. When Wilson called Thompson at home, Thompson claimed not to have been aware that she was scheduled to work that day.
On November 16, 2007, Thompson called in sick and told Wilson that she would be off work until November 21. Although Thompson had been scheduled to work on November 17, 20, and 21, she did not call in on those three days. Thompson subsequently claimed that she did not call in on those days because she planned to apply for FMLA leave for the absence. Thompson received a written warning for her failure to call in on those three days. The warning specifically stated that Thompson was “expected to follow Company policies and procedures,” and that failure to do so “could lead to further disciplinary action up to and including termination.”
On January 29, 2008, Thompson left a voice mail for Wilson stating that she was sick. Thompson reported to work the next day, but left early for a doctor’s appointment. Later that same day, Thompson left a message for Wilson saying that she could not return to work until February 5, 2008, but did not speak to Wilson or leave further messages for her after that.. On February 5, Wilson returned to work and was told that her employment was terminated, because she had violated the call-in policy seven times within the past 12 months.
Thompson sued CenturyTel for violation of the FMLA, claiming that CenturyTel interfered with her leave under that Act. CenturyTel defended the claim by saying that Thompson was fired not because of her FMLA leave, but because she had violated the company’s call-in policy. The lower court granted summary judgment for the employer, and the Eighth Circuit upheld the decision on appeal, in an unpublished opinion.
FMLA regulations specifically provide that an employer may require an employee on FMLA leave to “report periodically on the employee’s status and intent to return to work.” Thompson did not dispute that she failed to comply with the call-in policy, but argues that she would not have been terminated if she hadn’t taken FMLA leave. The Eighth Circuit held that to the contrary, Thompson’s repeated violations of the company’s policy were not directly related to any particular FMLA leave but to her failure to report her own absences as required and, therefore, summary judgment in the company’s favor was appropriate.
Here, CenturyTel’s clear, understandable, widely disseminated, and consistently enforced policy paved the way for the dismissal of Thompson’s lawsuit. The fact that Thompson had received the policy in writing in each of the years that she worked for Wilson was a critical element of the company’s successful defense in this case, and is a mechanism that should be noted by employers who decide to implement a call-in policy for absences that include FMLA-related absences.