Labor and Employment
| Publication year | 2013 |
Labor and Employment
Patrick L. Coyle
Alexandra Garrison Barnett
Brooks A. Suttle
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Courts within the United States Court of Appeals for the Eleventh Circuit handed down a number of important labor and employment opinions during the January 1, 2012 to December 31, 2012 survey period.1 The following is a discussion of those opinions.
Addressing an issue of first impression among all United States Courts of Appeal, the Eleventh Circuit held in Pereda v. Brookdale Senior Living Communities, Inc.2 that the Family and Medical Leave Act (FMLA or the Act)3 protects an employee's advance request for future FMLA leave, or notice of intent to take such future leave, even if that employee is ineligible for FMLA leave at the time of the request or notification.4 The decision makes clear that, at least in the United States Court of Appeals for the Eleventh Circuit, such a pre-eligibility notification or request for future leave is protected activity under the
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FMLA on which a FMLA retaliation or interference claim may be based.5
In October 2008, Kathryn Pereda (Pereda) began working at an assisted living facility operated by Brookdale Senior Living Communities, Inc. (Brookdale). Eight months later, in June 2009, she informed Brookdale that she was pregnant and would be requesting FMLA leave after the birth of her child, which was due five months later (in November).6 To be eligible for protected leave under the FMLA, employees are required to have been employed for at least twelve months and worked at least 1,250 hours within the twelve months prior to the start of their leave.7 As such, Pereda was ineligible for FMLA protected leave when she informed Brookdale of her pregnancy, but she would have become eligible prior to the commencement of the anticipated leave if she had remained employed with Brookdale at the time she delivered her child. In September 2009, however, before Pereda attained eligibility under the Act and before her child was born, Brookdale terminated her employment.8
Following the termination of her employment, Pereda commenced an action in the United States District Court for the Southern District of Florida. In her complaint, Pereda alleged that she was a "top employee" at Brookdale when she gave notice of her pregnancy, but after providing notice, Brookdale subjected her to a period of harassment, intense job scrutiny, and unfair treatment that caused a number of pregnancy-related medical issues.9 Pereda further alleged that in addition to being placed "on a performance improvement plan with unattainable goals," she was punished for taking leave to attend prenatal doctor appointments.10 Although Brookdale informed her that she was eligible for non-FMLA leave, she alleged that her employment was terminated when she took time off for bed rest, as instructed by her physician. Based on these factual allegations, Pereda asserted that Brookdale retaliated against her for exercising her rights under the FMLA and interfered with her FMLA rights.11
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In responding to Pereda's complaint, Brookdale filed a 12(b)(6) motion to dismiss for failure to state a claim.12 The district court granted the motion, dismissing the interference claim on the grounds that Brookdale "could not have interfered with Pereda's FMLA rights, because she was not entitled to FMLA leave at the time that she requested it."13 The district court dismissed Pereda's retaliation claim on similar grounds, holding that she could not have engaged in a statutorily protected activity because she was not an eligible employee under the FMLA; therefore, Brookdale could not have retaliated against her for an activity protected by the Act.14 In support of its conclusions, the district court cited a number of other district court opinions from within the circuit.15
Noting the "dearth of opinions from circuit courts" on the issue of whether a pre-eligibility request for leave or notification of intent to take leave commencing after the employee would be eligible under the FMLA can serve as the basis for a retaliation or interference claim, the Eleventh Circuit looked to district court opinions from several other circuits for guidance.16 The court observed that the opinions relied upon by the district court in granting Brookdale's motion to dismiss were inapposite because they did not involve employees who would have been eligible for leave at the time their leave was to commence.17 Ultimately, the Eleventh Circuit held that the district court's holding ran counter to the purpose of the FMLA.18 Specifically, the court stated as follows:
allowing the district court's ruling to stand would violate the purposes for which the FMLA was enacted. Without protecting against pre-eligibility interference, a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become
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eligible. Such a situation is contrary to the basic concept of the FMLA.19
Accordingly, the Eleventh Circuit reversed the district court's decision to grant Brookdale's motion to dismiss, holding that Pereda had stated sufficient facts to establish prima facie claims for interference and retaliation under the FMLA.20
Regarding Pereda's interference claim, the court observed that "because the FMLA requires [thirty days'] notice in advance of [foreseeable] future leave, employees are protected from interference prior to the occurrence of a triggering event."21 Quoting a district court opinion from the United States District Court for the Northern District of Illinois, the court concluded that it would be "illogical" for the FMLA to include a notice requirement that protects employers from unanticipated employee absences while at the same time exposing those same employees "to retaliation, or interference, for which they have no remedy."22 Citing an opinion from the United States District Court for the Eastern District of Pennsylvania, the court stated further that such an interpretation would create "a trap for newer employees and extend [] to employers a significant exemption from liability."23 To fulfill the basic purposes of the FMLA, the court concluded that "logic mandates" the "FMLA be read to allow a cause of action for employees who, like Pereda," actually exceed the FMLA's required thirty days' notice for a foreseeable future leave.24
In reaching this conclusion on the interference claim, the court rejected multiple arguments advanced by Brookdale.25 First, Brookdale argued that under 29 C.F.R. § 825.112,26 an employee only becomes eligible for FMLA leave upon the occurrence of the FMLA triggering event, which in the pregnancy context is the birth of the child. Based on that federal regulation, Brookdale asserted that it could not be liable for terminating Pereda on either a retaliation or interference claim as a matter of law because it terminated her employment before she ever
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became eligible for FMLA protection. The court, however, distinguished between (i) being eligible to actually take leave and (ii) being protected after requesting leave that would begin in the future, after eligibility and after the triggering event.27 Accordingly, the court held that the requirement for eligibility "does not open the door for pre-eligible interference with FMLA rights with impunity."28 Rather, because eligibility is determined "as of the date the FMLA leave is to start," and the Act requires employees to give notice prior to that date, the Act plainly contemplates a situation where notice would be given in advance of actual eligibility.29 In short, the Eleventh Circuit rejected Brookdale's argument, observing that adopting it would "frustrate the purpose of the FMLA by permitting employers to eliminate staff that the employer perceives will need FMLA" leave.30
Second, Brookdale argued that overturning the district court's ruling would "improperly expand the reach of the FMLA to cover ineligible employees."31 The court also rejected this argument, explaining that the court's holding did not expand the scope of employees protected by the FMLA.32 Rather, the court "simply h[eld] that a pre-eligible employee has a cause of action if an employer terminates her in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible."33
Following similar reasoning in relation to the retaliation claim,34 the Eleventh Circuit rejected the district court's finding that because Pereda was not eligible for FMLA benefits, "she therefore could not have engaged in statutorily protected activity, even if she would have become eligible at some point in the future."35 Again emphasizing the policy underlying the FMLA, the court held that Pereda's notification of her intent to take FMLA leave was indeed a protected activity.36 The court explained:
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We hold that a pre-eligible request for post-eligible leave is protected activity because the FMLA aims to support both employees in the process of exercising their FMLA rights and employers in planning for the absence of employees on FMLA leave. Protecting both reflects that the FMLA should be executed in a manner that accommodates the legitimate interests of employers without abusing the interests of employees.37
In so ruling, the court held that Pereda must be permitted to proceed on her claim for retaliation and that dismissal was inappropriate, remanding the case for further proceedings to the district court.38
Finally, the court summarily dismissed Brookdale's argument that under the court's reasoning "an employee could be deemed FMLA eligible from the first week of employment."39 As noted above, the court made clear that it was not expanding eligibility for the FMLA through the holding, but rather ensuring appropriate protections for those employees who notify their employers...
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