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Court Interprets FMLA’s two-year statute of limitations in progressive discipline case



By Courtney Karnes

The employee worked for the Illinois Department of Corrections (IDOC) from 1995 until she was terminated on October 15, 2010. The employee was terminated because she accumulated too many unauthorized absences. In this case, the employee challenged the classification of three of her absences as “unauthorized” on the ground that these absences qualified as protected leave under the Family Medical Leave Act (FMLA). 

In 2008, IDOC and its employees’ union adopted a new attendance policy, which made employees subject to termination if they accumulated more than 12 unauthorized absences. Starting in 2003, the employee accumulated twelve unauthorized absences in the course of seven years. Of these twelve, the employee claimed that three fell under the protection of the FMLA. The first challenged unauthorized absence occurred in 2003 when the employee was admitted to the emergency room with pneumonia. The second challenged absence occurred in 2004 when the employee’s daughter was hospitalized after experiencing pre-term labor. The third and final challenged absence occurred in 2005 when the employee left work to attend physical therapy. With regard to each absence, the employee notified her supervisor prior to the absence. 

The employee was terminated in 2010 after accruing her twelfth unauthorized absence. The employee sought relief from the Illinois Civil Service Commission (ICSC), but did not put forth an FMLA defense at this juncture. The ICSC adopted the recommendation of the administrative law judge sustaining the termination. The employee then filed suit in federal court against the IDOC, alleging violation of the FMLA.

The district court denied her claim, finding it was barred by the two-year statute of limitations set forth in the FMLA. FMLA provides that an employee’s claim for an FMLA violation cannot be brought “later than two years after the date of the last event constituting the alleged violation for which the action is brought.” The employee’s claim stemmed from the IDOC’s denials of FMLA leave in 2003, 2004 and 2005. Given that the employee’s court action was filed in 2012, the district court held that her action was untimely based on the FMLA’s aforementioned two-year statute of limitations.

The employee then appealed to the Seventh Circuit Court of Appeals. On appeal, as she did before the district court, the employee argued that the two-year statute of limitations period should have commenced on the date she was terminated (2010) rather than the dates she was actually denied the requested leave at issue (2003, 2004, and 2005). The Seventh Circuit rejected this argument. The Court held that the statute of limitations began running with regard to each unauthorized absence on the date that the IDOC deemed the respective absence unauthorized. 

In addressing the issue presented by this case, the Seventh Circuit noted in a footnote that “there is little authority on this question elsewhere, and it points in divergent directions.” Employers should be mindful of this decision and look for courts across the nation to refer to it when deciding similar cases under the FMLA involving progressive discipline for repeat unauthorized absences.




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