Employment-Seventh Circuit Upholds Termination Under Employer’s “No-Fault Attendance Policy” Against Claim Of Retaliation Under The FMLA

Bailey v. Pregis Innovative Packaging, Inc., No. 09-3539 (7th Circuit 2010), presents some interesting matters under the Family and Medical Leave Act of 1993 (the “FMLA”).

In this case, the defendant had fired the plaintiff because she had received more than 8 “points” for absenteeism during a 12-month period–a firing offense under the defendant’s “no-fault attendance policy.” The plaintiff claimed that she would not have received so many points had she not taken two absences in July 2006. She contends that these two absences were leaves that she was entitled to take under the FMLA, and if so, the defendant could not penalize her for taking them without violating the FMLA. The Court found that, in fact, she was not entitled to those leaves under the FMLA, since she had not worked enough hours before the leaves started (the FMLA requires at least 1,250 hours of service with the employer during the previous 12-month period, which the Court found that the plaintiff did not have). Nevertheless, the Court addressed the plaintiff’s claim that her firing-due to the 8 point no-fault attendance policy-was proscribed retaliation for taking FMLA leave.

In reviewing this claim, the Court noted that a “point” under the employer’s policy, which jeopardizes a worker’s employment with the employer, is removed 12 months after it is imposed. The employer here does not count time on leave, including FMLA leave, toward the 12 months, that is, taking the FMLA leave tolls the 12 month period. Under the FMLA, taking FMLA leave cannot result in the loss of any employment benefit accrued prior to the date on which the leave commenced. The Court ruled that the removal of absenteeism points is an employment benefit, which the FMLA protects. However, the Court held that this does not help the plaintiff in the instant case, since the benefit did not accrue by the time the plaintiff’s (claimed) FMLA leave started. Rather the benefit would accrue-if at all-12 months after the FMLA leave started (not counting the time on FMLA leave); until the end of this 12-month period, an employee would have no right to have any points removed. Thus, the plaintiff’s retaliation claim fails.