Diana Dunley was a postal worker for USPS for approximately 19 years, during which time she requested and was approved for intermittent FMLA leave on two occasions: in June 2014 to care for her mother and for her own medical condition in April 2015. Diana also requested FMLA leave on several other occasions, and no request was ever denied. Beginning in the fall of 2015, she was issued four disciplinary warnings, most of which involved not showing up to work, leaving early, or arriving late. The last disciplinary warning was issued in December 2015, after Diana submitted a Request for or Notification of Absence form seeking leave from December 3, 2015 through December 24, 2015, and attached a note from a professional counselor. No FMLA request was made. Two weeks later, USPS sent Diana an absence inquiry which included instructions and FMLA forms for her to submit if her leave was covered by FMLA. She never responded. About a week after returning to work, Diana received a warning for her failure to respond to the absence inquiry. The warning explained she could either request mediation or appeal the warning, but she did neither. USPS later issued a decision letter referencing the warning and indicating she chose not to contest the underlying facts.

Last year, Diana filed suit against USPS in the Northern District of Oklahoma alleging claims for FMLA interference and retaliation, and USPS moved for summary judgment on both claims. On March 14, 2017, the court granted the motion based upon its determination that Diana obtained all intermittent FMLA leave she requested, decided not to submit FMLA forms for her December leave, and presented the court with no evidence that USPS had a retaliatory motive in issuing the disciplinary warnings.

No Interference

To defeat summary judgment on an interference claim, a plaintiff must show: (1) that she was entitled to FMLA leave; (2) that some adverse action by the employer interfered with her right to take FMLA leave (either by showing the employer prevented her from taking FMLA leave, or denied reinstatement following leave); and (3) that the employer’s action was related to the exercise or attempted exercise of her FMLA rights. While USPS conceded that Diana was entitled to take intermittent FMLA leave in accordance with her two FMLA claims to care for her mother and for her own medical condition, it argued that she could not meet her burden with respect to the second element of interference since she admittedly was never denied any request for FMLA leave. The court agreed. Diana argued that her supervisor once stated USPS would not have to “honor” her doctor’s request that she be given two consecutive days off, rather than working the 6-day workweek required during the busy holiday season. The court rejected her argument outright, explaining that despite the fact that Diana never actually worked 6 consecutive days a week, the FMLA does not require an employer to provide an employee a schedule of their choice. Diana was free to request FMLA leave for one day each week as needed.

Furthermore, it was of no consequence that her claim for intermittent FMLA leave to care for herself did not cover a month long absence in December 2015. USPS responded appropriately when it sent Diana an absence inquiry request and forms to fill out should she wish to initiate an FMLA claim. She chose not to do so.

No Retaliation

In turning to Diana’s retaliation claim, the court found no indication that her disciplinary warnings had any adverse effect on her employment. Diana took the position that her December absence was adverse by virtue of USPS treating it as unpaid leave. USPS responded by arguing that her absence was treated as unpaid leave because she did not provide sufficient documentation for the leave and was advised that her failure to do so would result in unfavorable treatment of her absence. The court found that regardless of whether Diana suffered a materially adverse action, there was no evidence of a causal connection to the exercise of her FMLA rights. Specifically, there was no indication that management harbored animosity toward her for her use of FMLA leave, and in fact, several plant employees had used FMLA leave. Admittedly, Diana’s claim that she experienced retaliation was based on nothing more than her subjective opinion. Because there was no evidence that USPS did not apply its policies in good faith, her claim for FMLA retaliation could not withstand summary judgment.

Lessons

USPS had a long track record of honoring Diana’s documented need for FMLA leave. It was able to provide evidence that it followed both the law and its own internal policies. Conversely, Diana was not able to provide any evidence explaining why she did not provide documentation as to her December 2015 absences. This was her downfall.

By Destyn D. Stallings, DStallings@dsda.com