Hurley Burish and Stanton, SC Attorneys at law

Family Medical Leave Act (“FMLA”) Case: Beware of the Time Limits!

Author: John C. Mitby
Phone: 608-575-4077

The Seventh Circuit held on October 20, 2015, in Barrett v. Illinois Department of Corrections, No. 13–2833, that a state employee’s Family and Medical Leave Act (“FMLA”) denial of leave claim was untimely because suit was not filed until after the employee was fired for her poor attendance record instead of within two years of each alleged leave denial.

The Illinois Department of Corrections fired Cindy Barrett in October 2010 after she had accumulated 12 unauthorized absences in violation of Department policy. However, the employee alleged that three of those absences, in December 2003, December 2004, and August 2005, were protected under the FMLA. She raised her disputes about the alleged unauthorized absences with the Department’s Employee Review Board. However, the Board upheld the discipline. In January 2012, subsequent to her termination, she filed suit against the Department under the FMLA.

The district court ruled in favor of the Department, and the Seventh Circuit upheld the district court’s ruling because the suit had not been filed within two years of the last disputed leave denial. Under the FMLA, an action may be brought “not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.” The court stated that “last event” would “be the employer’s rejection of the employee’s request for leave.” According to the court, “[e]ach time the Employee Review Board ruled against Barrett, an actionable FMLA claim accrued and the limitations clock started to run.” Ms. Barrett was therefore required to bring her claims within two years of the December 2003, December 2004, and August 2005 leave denials. No suit was filed until January 2012, which the court noted was “several years too late.”

But note that her claim is not the same as a claim for hostile work environment. She alleged that she was wrongly denied family or medical leave on three specific occasions. On her rationale these were “discrete acts” — independently actionable violations of the FMLA– and each one triggered its own limitations clock. However even if the three allegedly improper denials were independently actionable under the FMLA, the two-year period on each would have run prior to her filing suit, so her argument wasn’t so much that one or more of the three denials happened within the time limit, but that the Department’s terminating her was itself actionable under the FMLA. The Seventh Circuit rejected that argument because it would mean there are two “last events” that start the clock running (i.e., the time of the denial, and the time of the termination), and that seems confusing in this case.

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Regardless, in handling FMLA claims, check the time period against the current case law involved.