Employment -Eleventh Circuit Rules That Plaintiff Can Be Protected By The FMLA Even Before She Qualified For FMLA Leave

In Pereda v. Brookdale Senior Living Communities, Inc., No. 10-14723 (11th Cir. 2012), the plaintiff, Kathryn Pereda (“Pereda”), was appealing the district court’s dismissal of her complaint against defendant, Brookdale Senior Living Communities, Inc. (“Brookdale”), alleging interference and retaliation under the Family and Medical Leave Act of 1993 (the “FMLA”). The district court held that because Pereda was not eligible for leave under the FMLA at the time she was terminated by Brookdale, she could not bring either claim under the FMLA. The question for the Eleventh Circuit Court of Appeals (the “Court”): does the FMLA protect a pre-FMLA eligibility request for post-FMLA eligibility leave?

In this case, Pereda began her employment with Brookdale on October 5, 2008. In June of 2009, Brookdale was advised that Pereda was pregnant and would be requesting FMLA leave after the birth of her child on or about November 30, 2009. Pereda alleges that, after learning about her pregnancy, Brookdale began harassing her, causing stress and other complications in her pregnancy, and that Brookdale’s management began denigrating her job performance and placed her on a performance improvement plan with unattainable goals. Brookdale fired Pereda in September of 2009. This suit followed.

In analyzing the case, the Court said that, in order to receive FMLA protections, one must be both: (1) eligible for FMLA leave, meaning having worked the requisite hours and having been employed for the requisite period- that is, he or she has worked at least 1,250 hours in the past 12 months, and has been employed by the employer for a total of at least 12 months, and (2) entitled to FMLA leave, meaning an employee has experienced a triggering event, such as the birth of a child. Conditions (1) and (2) must both be met by the date the FMLA begins. Here, at the time she requested FMLA leave, she had not worked the requisite hours or been employed during the requisite period, and had not yet experienced the triggering event, the birth of her child. However, she would have met conditions (1) and (2) by the time she gave birth and began her requested leave.

As to Pereda’s interference claim, the Court said that, because the FMLA requires notice in advance of future leave, employees are protected from interference prior to the occurrence of a triggering event, such as the birth of a child; otherwise, there is no protection upon providing the notice. As to Pereda’s retaliation claim, the Court said that a pre-FMLA eligible request for post-FMLA eligible leave is protected activity, because the FMLA aims to support both employees in the process of exercising their FMLA rights and employers in planning for the absence of employees on FMLA leave. As such, the Court ruled that Pereda was entitled to FMLA protection at the time she requested the FMLA leave (in June, 2009), so that she could proceed with her interference and retaliation FMLA claims. Accordingly, the Court reversed the district court’s decision.