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Fourth Circuit Says Eligible Employee on Non-FMLA Leave Still Protected from Retaliation

    Client Alerts
  • March 13, 2009

Last week, the Fourth Circuit Court of Appeals (which includes North and South Carolina) determined that an employee can maintain a claim for retaliatory termination under the Family and Medical Leave Act, even where the leave that allegedly precipitated the termination was never considered FMLA leave.

In Dotson v. Pfizer, Inc., the plaintiff was a Pfizer employee who adopted a baby from Russia.  Prior to departing, he met with Pfizer’s human resource department to inquire about a leave of absence.  Pfizer and the employee never considered the leave to be FMLA leave, and instead, he used vacation time for the trip.  After being fired a few weeks after his return from Russia, the plaintiff sued, alleging retaliation under the FMLA.  A North Carolina jury awarded him over $1 million in damages and attorneys’ fees.

On appeal, Pfizer sought to overturn the jury verdict, arguing that because the plaintiff never took FMLA leave, he could not claim protection under the Act’s anti-retaliation provisions.  The Fourth Circuit rejected this argument, affirming this part of the jury verdict.  In its decision, the court relied upon Department of Labor rules that do not require an employee to request FMLA leave by name in order to receive the Act’s protections.

In this case, the plaintiff clearly qualified for FMLA leave for adoption of a child, and gave Pfizer adequate advance notice of the need for leave.  Pfizer could not use its own oversight in failing to place the plaintiff on FMLA leave to deprive him of his anti-retaliation rights under the statute.

Using Dotson’s reasoning, employers should analyze termination decisions for employees on leave who qualify for FMLA, even if the leave may not have initially been characterized as such.  Unless the employee expressly rejects FMLA leave, or fails to provide the employer with adequate notice of entitlement to FMLA leave, the employer’s classification of the leave will not determine the employee’s ability to claim a FMLA violation.