Her argument was that she did not have to request FMLA leave. The employer should have designated all her time off as FMLA time, protecting her from discharge. She exhausted the vacation time, did not request FMLA leave, did not ask for an extension, did not have her husband ask for an extension (although he worked for the same employer), and so, was no-call no show. Even the union figured she'd be fired. The union was right.
Escriba then sued under FMLA and analogous California law, the California Family Rights Act.
The district court let her claims go to the jury. After a "short" deliberation, the jury found for the employer. The key issue at trial and on appeal was whether Escriba's time off qualified as FMLA, even though she declined FMLA. The Court analyzed the issue:
Holding that simply referencing an FMLA-qualifying reason triggers FMLA protections would place employers like Foster Farms in an untenable situation if the employee’s stated desire is not to take FMLA leave. The employer could find itself open to liability for forcing FMLA leave on the unwilling employee. See, e.g., Wysong v. Dow Chem. Co., 503 F.3d 441, 449 (6th Cir. 2007) (noting that “[a]n involuntary-leave claim,” alleging that an “employer forces an employee to take FMLA leave,” is “really a type of
interference claim”). We thus conclude that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection. See, e.g., Ridings v. Riverside Med. Ctr.537 F.3d 755, 769 n.3 (7th Cir. 2008) (“If an employee does not wish to take FMLA leave but continues to be absent from work, then the employee must have a reason for the absence that is acceptable under the employer’s policies, otherwise termination is justified.” (emphasis added)).
The Court also upheld the jury's conclusion that Escriba indeed declined to use FMLA. There was evidence at trial that she wanted to preserve her FMLA entitlement. And she knew the ropes, apparently, because she had sought FMLA leave on 15 previous occasions
there is substantial evidence that Escriba elected not to take FMLA leave. After Linda Mendoza’s initial meeting with Escriba on November 19, 2007, Mendoza met with Escriba and an interpreter, twice asking if Escriba needed more time in Guatemala. Escriba twice answered “no.” Mendoza testified that she then told Escriba to visit the Human Resources Department if she later decided to request more than two weeks of leave.
This decision is good for employees, too. For example, if a pregnant employee wishes to use vacation to care for a parent so she can preserve 12 weeks of FMLA for baby bonding, should she be able to do so? See?
This case is Escriba v. Foster Poultry Farms, Inc. and the opinion is here.
