In August of 2013, the United States Court of Appeals for the Sixth Circuit affirmed a lower court’s ruling, which had dismissed the plaintiff’s Kentucky FMLA interference case. (See Srouder v. Dana Light Axle Manufacturing, LLC., 2013 WL 4007646 (6th Cir 2013)). Plaintiff was an assembly worker since September 2006 for the defendant. He worked second shift initially then was moved to first shift. Id. Part of his job was to lift various parts weighing between twenty and seventy-five pounds. Id. Plaintiff was a good worker when present but had an attendance problem. Between January 26, 2009 and September 24, 2009 plaintiff called in nineteen times for absences including unpaid leave and FMLA leave.
In September of 2009 plaintiff suffered complications from a car accident in 1995. He called in sick in September taking FMLA leave and then his doctor scheduled him for surgery for October 7, 2009. Id. On September 25, 2009, plaintiff was sent home for turning in an incomplete medical certification for previously claimed FMLA absences. He had turned it in incomplete before and was told to turn it in correctly by the 25th, which he did not. He needed to turn in the proper medical certification for his claimed FMLA absences. Id. (It is at this time that plaintiff should have called a Kentucky Family and Medical Leave Act (FMLA) Interference lawyer to seek advice)
There were a few meetings after the 25th date. But, finally, plaintiff did not return to work on October 1, 2, 5, or 6. Id. He did not call in. Id. After two missed days, the person is considered to have voluntarily quit said defendant. Id. Defendant sent plaintiff a letter indicating that if they don’t hear back from him soon they will consider October 6 as his termination date. Id. Plaintiff stated that he thought he did not have to call in because of the meeting they had had and in that they knew he was going to have surgery. Id. Plaintiff should have spoken to a Kentucky Family and Medical Leave Act (FMLA) Interference lawyer to see if he had done everything right.)
“A plaintiff bringing an interference claim under the FMLA has the burden to prove that: 1) he was an eligible employee; 2) the defendant was an employer as defined under the FMLA; 3) the employee was entitled to leave under the FMLA; 5) the employee gave the employer notice of his intention to take leave; and 5) the employer denied the employee FMLA benefits to which he was entitled.” (cites omitted).
The Kentucky Family and Medical Leave Act (FMLA) Interference lawyer for the defendant claimed that the prong 4 was not satisfied. That the employee never gave the employer notice of intention to take leave. The court noted that 29 C.F.R. Section 825.302(d) explicitly permits employers to condition FMLA-protected leave upon an employee’s compliance with the employer’s usual notice and procedural requirements, absent unusual circumstance. Id.
The court did not see evidence of any “unusual circumstance” that would have justified plaintiff’s failure to follow the call-in requirements of the defendant’s attendance policy. Id.
If you have been the subject of a Kentucky Family and Medical Leave Act (FMLA) Interference matter, please call and speak to a Kentucky Family and Medical Leave Act (FMLA) Interference lawyer at the Law Offices of Andrew Alitowski, P.A. at 888-ASK-ANDREW (275-2637) or contact us. We are available 24 hours a day, 7 days a week.
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