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Tenth Circuit Establishes Standard for Willful FMLA Violation

    Client Alerts
  • April 25, 2008

In most cases, claims of retaliation or interference with Family and Medical Leave Act rights must be filed within two years of the alleged violation.  However, the FMLA extends this filing period to three years for “willful” violations of the statute’s terms.  A new decision from the Tenth Circuit Court of Appeals helps establish when FMLA violations by an employer are deemed willful.  The case, Bass v. Potter, was filed more than two, but less than three years after a Postal Service employee alleged that he was wrongfully denied FMLA leave.

In his complaint, the plaintiff alleged that in response to absenteeism policy violations, he submitted medical information notifying USPS that he suffered from a back condition.  The medical information form was rejected by the employer as incomplete.  The plaintiff missed the deadline for resubmitting the form, and was denied FMLA leave.  He later submitted the requested information, but was terminated for excessive absences.

The plaintiff appealed the district court’s dismissal of his FMLA suit as untimely.  He claimed that the dismissal was willful because USPS never gave him a reasonable opportunity to respond to the medical information request.  The Tenth Circuit rejected these arguments, affirming summary judgment for the employer.  The court adopted the same definition of willfulness for FMLA violations as is found in the Fair Labor Standards Act.  Under the FLSA, the employer must have known or shown reckless indifference to the fact that its conduct was illegal.  Negligence is not enough.

Even if the plaintiff’s allegations were true, USPS did not willfully violate the FMLA.  It was entitled to request medical certification, and to ask for clarification when that certification was incomplete.  USPS also explained to the plaintiff the consequences of failure to comply with these requests.  It never deliberately ignored the FMLA or failed to review its requirements.  Finally, the plaintiff never demonstrated medical impossibility or other equitable reasons why the statute of limitations should be tolled.