The 8th U.S. Circuit Court of Appeals has upheld an employee’s termination for job abandonment, in spite of the fact that the employee argued that he was on FMLA leave at the time of his termination. The court based that holding on the fact that the employee was unable to return to work at the conclusion of his medical leave, and that he therefore was unable to show that his termination prejudiced his rights under the FMLA. Hearst v Progressive Foam Technologies, Inc., 8th Cir., No. 10-1253, June 8, 2011.
The Family and Medical Leave Act (FMLA) provides 12 workweeks of leave during a 12-month period to eligible employees under specific circumstances. One of the criteria of eligibility is that the employee shall have worked for the employer for at least twelve months prior to the requested leave.
Jason Hearst became employed with Progressive Foam Technologies (PFT) on March 15, 2006. In December 2006, Hearst was involved in a non-work-related motor vehicle accident, and suffered injuries for which he sought treatment. He requested a leave of absence from PFT for the period from January 3 through February 5, 2007. In spite of the fact that Hearst had worked for the company for less than the requisite 12 months, PFT informed Hearst that he “was eligible for leave under the FMLA” and that his four-week absence from work would be “counted against [his] annual FMLA leave entitlement policy.”
Hearst’s recovery required a longer absence than anticipated, and included two surgeries. On February 6, Hearst’s doctor informed PFT that Hearst would not be able to return to work until April 10, 2007. On March 16, 2007, PFT informed Hearst, by letter, that his 12-week FMLA leave would end on March 28, but that the company would allow him to take an additional 30 days, presumably until April 27. That letter included this sentence: “If we do not hear from you regarding a specific return to work date, we are assuming that you will not be returning to work in the foreseeable future.”
On March 29, Hearst’s doctor advised PFT that Hearst had undergone an additional surgery and ultimately determined that Hearst would be unable to return to work until May 1, 2007. When Hearst failed to return to work on that date and did not provide any additional information about that failure, PFT fired him for “job abandonment.” In spite of that firing, on May 15, 2007, Hearst’s doctor advised PFT that Hearst would not be able to return to work for another two months, but subsequently extended that anticipated return date to September 2007.
Hearst sued PFT, alleging that the company interfered with his FMLA rights when it fired him on May 1, 2007. He argued that his FMLA leave, which could not have started until his one-year anniversary with the company, formally began on March 15, 2007, and that his firing occurred only seven weeks after that date, thereby interrupting his leave entitlement. He further argued that PFT retaliated against him for taking FMLA leave. However, the lower court concluded that Hearst had exhausted his FMLA leave on March 28, 2007, twelve weeks after he began his leave in January. That court counted all of Hearst’s leave as FMLA-related, including all absences prior to his anniversary date. It also concluded that Hearst’s failure to notify the company that he couldn’t return to work on May 1 violated the company’s leave of absence policy, and provided a legitimate business reason for firing Hearst. The district court further concluded that even if Hearst had been entitled to FMLA until mid-June (as Hearst argued), the May 1 firing did not create the prejudice necessary to support an FMLA claim, because Hearst failed to show that he would have been able to return to work within the allowable time frame during or after his leave.
The Eighth Circuit skirted the “unique question” of whether the pre-March 2007 leave should have counted toward Hearst’s 12-week FMLA entitlement, and focused solely on the question of whether Hearst had demonstrated the requisite prejudice necessary to establish a claim under the FMLA. The Court found that he did not. Hearst had a medical condition that created an inability for him to return to work for a period substantially longer than the 12-week FMLA leave period, and that fact was fatal to his claim. Even if the Court had determined – as Hearst argued – that his protected FMLA leave extended until mid-June 2007, he would have had to be able to show that he could have returned before or at the expiration of that leave. Because he was unable to do so, he could not demonstrate any prejudice as a result of his firing, and summary judgment in PFT’s favor was appropriate.
While this holding is clearly advantageous for employers, it must be pointed out that Hearst did not bring a claim under the ADA or the ADAAA. Had he done so, the Court may have had to do a further analysis of whether PFT’s actions were sufficient to constitute the necessary search for reasonable accommodation under those statutes, and whether additional leave may have been such an accommodation.