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Unexcused Absences Caused Termination

The Richmond U.S. District Court grants summary judgment dismissing employee’s complaint alleging violations of the Family Medical Leave Act of 1993 and Title VII; employee’s unexcused absences over a period of several years caused her termination.

Employee worked 10 years as an hourly employee at a bakery facility.  Employer had an attendance policy with three stages of discipline; the last is suspension pending possible discharge.  Employer’s policy allowed for FMLA absences with medical certification and coordination with designated personnel.  The policy also allowed for absences up to 10 days with medical documentation.  Due to her diabetes, hypertension and foot problems, employee frequently sought FMLA leave.  In 2007, she took 10 days of leave based on medical documentation employer’s nurse interpreted as limited to bi-monthly medical appointments.  In early 2008, she took three days after exhausting her leave balances, resulting in Level 1 disciplinary action (probation).  After she was absent again without excuse, employer imposed the second level of discipline – one week suspension without pay and four months’ probation.  Employee requested FMLA leave for additional absences in the summer of 2008.  Employer rejected employee’s medical documentation for frequent office visits as insufficient and she filed a complaint with the U.S. Department of Labor (DOL).  DOL found violations relating to computation and not allowing employee to work nine days off when a physician supported a limited eight-hour shift.  Employer in May 2008 granted FMLA leave, lifted the disciplinary measures, offered to compensate the unpaid suspension, and informed plaintiff she had 32 hours of FMLA leave available.  The next week employee was absent three days and missed three more days in June and July with medical documentation supporting only frequent office visits.  Employer imposed stage one then stage two discipline after employee had 29 absences in August and September with medical certification referring to frequent office visits.  Employer imposed stage three suspension in October and terminated employee in November.    Employee filed four EEOC charges between 2006 and 2009, one in September 2008; all charges were dismissed but a right to sue letter was issued in June 2010.  Employee’s state court suit was removed then amended to claim retaliation and interference with her FMLA rights.

The district court granted summary judgment for employer, applying established Rule 56 standards.   Employee never provided adequate documentation for absence from work.  Employer gave her more than the law required.  Her claims of disrespect and threats are unsupported by the record.  Nor has she shown any prejudice resulting from employer’s alleged noncompliance in failing to notify her of leave balances.  She has not shown she would have taken any less leave and admits over a month of absences not covered by FMLA preceded her termination.  Employer is not required to provide leave exceeding the statutory period of 12 weeks and may count leave taken under its voluntary programs against the FMLA allowance. Employee has not shown harmful interference with her FMLA rights.

Even if employee could make out a prima facie case connecting her termination to protected activities, the lion’s share of the evidence shows it was her noncompliance with employer’s generous leave policy that caused her termination.  The two month interval between her third EEOC claim and termination is insufficient to establish a causal connection.

Bullock v. Kraft Foods, Inc. (Hudson) No. 3:11CV36, Nov. 22, 2011; USDC at Richmond, Va. VLW 012-3-028, 18 pp.

VLW 012-3-028

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