Request for Vacation Not Protected by FMLA and Cannot Support Interference Claim

Does an employee’s request for leave have to be protected by the FMLA to give rise to a potential interference or retaliation claim? Last month, the Eleventh Circuit answer said yes in the case of Hurley v. Kent of Naples, Inc., et al., No. 13-10298 (11th Cir. 2014).

Hurley was employed as the CEO for Kent of Naples, a company providing security services. About seven years into his employment, Hurley sent an email to his superior with the subject line “Vacation Schedule,” providing a vacation schedule for the next two years consisting of eleven weeks of vacation. His superior responded via email that the vacation request was denied and asking Hurley to schedule a meeting to dismiss the matter further.

Hurley responded that his email had not been a request, but a schedule, and that he had been advised by his medical/health professionals of his need to avail himself of vacation that he had earned was “no longer optional.” In fact, although Hurley did not say so in his email, he had been suffering from depression and anxiety which had produced panic attacks. Hurley and his superior discussed the email the next day via telephone. The parties dispute what occurred during this call with Hurley claiming that he explained his medical condition and need for leave and his superior denying that Hurley ever mentioned his medical condition. Regardless, the parties do not dispute that Hurley’s employment was terminated at this time. His superior asserts he was terminated for insubordinate behavior and poor performance.

A week after Hurley’s termination, he had his physician complete a FMLA form for him, knowing that he had already been terminated. The physician stated that he suffered from depression and had received treatment for his condition, but also noted that he could not determine the duration and frequency of any incapacity. Hurley then filed a lawsuit in district court asserting that Kent of Naples interfered with the exercise of his right to unpaid leave by terminating his employment because of his exercise of this right and a retaliation claim, asserting that he was retaliated against based on his exercise of his right to FMLA leave. Kent of Naples maintained that Hurley’s leave request was not protected by the FMLA because it was for vacation and there was no period of incapacity. Hurley took the position that his leave was protected because he had a chronic serious health condition.

At trial, Hurley’s physician testified that although he filled out Hurley’s FMLA form, he did not mean to imply that Hurley needed medical leave for the dates in the schedule submitted to Kent of Naples and, in fact, that the physician had never seen the schedule and would not have certified FMLA leave for any future dates. Hurley maintained that the leave was requested for medical reasons, he and his wife picked the days for leave without input from a health professional and that his leave was not intended to predict when he would be incapacitated because he did not know when any episode or panic attack would occur. Hurley claimed that normal vacation activities were things that would help him get better and confirmed that no doctor had told him to take a specific amount of vacation time.

Kent of Naples moved for judgment as a matter of law at the close of Hurley’s case on the grounds that there was no evidence that the leave requested was for a period of incapacity. The jury reached a strange result, finding that Hurley was entitled to an FMLA benefit which was denied, but that the request for leave was not a substantial or motivating factor prompting the defendant to terminate Hurley’s employment, yet still awarding Hurley damages in the amount of $200,000. Kent of Naples renewed its judgment as a matter of law on the grounds that the leave request did not qualify for protection under the FMLA. Ultimately, the district court disagreed and entered judgment for Hurley on the interference claim, awarding actual damages in the amount of $200,000, liquidated damages in the amount of $200,000, and $353,901.85 in front pay (and later awarding $233,109.75 in attorneys’ fees and $21,329.36 in costs).

Kent of Naples appealed on several grounds, including that district court erred by denying the renewed motion for judgment as a matter of law and erred in entering judgment in the amounts it did. The Eleventh Circuit did not reach the second issue because it concluded that the district court had erred in denying the renewed motion for judgment as a matter of law because Hurley’s request did not qualify for FMLA leave.

Hurley claimed that he could bring a claim under the FMLA without actually qualifying for leave because he provided sufficient notice to his employer of his intention to take leave and only had to “potentially qualify” for FMLA leave. Kent of Naples maintained that an employee has to actually qualify for FMLA leave to bring an interference or retaliation claim. The Eleventh Circuit agreed.

The Eleventh Circuit found that notice of leave is only relevant if the leave is protected by the FMLA. Further, explained the Eleventh Circuit, nothing in the FMLA speaks of “potential rights” under the FMLA. The employee has to actually qualify for FMLA leave in addition to providing appropriate notice to assert a claim for interference or retaliation. Here, Hurley’s request for leave did not qualify for FMLA protection. The fact that Hurley suffered from a chronic health condition alone is not sufficient, but rather, “the FMLA only protects leave for ‘[a]ny period of incapacity for such incapacity due to a chronic serious health condition.” Hurley, p. 15 (quoting 29 C.F.R. § 825.115(c)). Here, Hurley admitted that his leave was for a period of incapacity and testified that he could not predict periods of incapacity. Therefore, he could not meet his burden of showing that his request for leave was protected under the FMLA.