Metropolitan News-Enterprise


Thursday, August 9, 2001


Page 5


Ninth Circuit Rules for Employee in Dispute Over Family Leave Act


By a MetNews Staff Writer


Terminating an employee for taking unauthorized absences is illegal if the absences should have been excused under the Family and Medical Leave Act, even if the employee didn’t realize it at the time, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Saying the trial judge misinterpreted the act, the panel overturned a judgment in favor of America West Airlines, directed that former employee Penny Bachelder be granted summary judgment as to liability, and sent the case back to U.S. District Court in Phoenix for a trial on damages.

Broadly interpreting the 1993 act’s protections for workers, the court held that it is the employer’s responsibility to know, once a worker explains why he or she needs leave, whether the FMLA is implicated.

 The court also ruled in favor of Bachelder on two other issues that could have broad implications for employers.

It held that if an employee’s taking of leave to which he or she was entitled under the act was one of several reasons for termination, the employee is entitled to relief even if the other reasons were valid. And it held that an employer must notify a worker in advance which of several allowable methods will be used to calculate the amount of leave available, otherwise the employer will be bound by whichever method is most favorable to a particular employee.

Bachelder joined the airline in 1988 and was a passenger service supervisor at Sky Harbor Airport in Phoenix from 1993 until she was fired in 1996. The reasons given for her termination were that she had missed work an excessive number of times that year, that she had failed to carry out her responsibilities for overseeing an Employee of the Month Program, and that the airport section for which she was responsible had performed poorly in terms of getting work done on time.

Bachelder claimed in her lawsuit that she was fired in retaliation for taking family and medical leave in 1994 and 1995, and that her 16 days of child-care related 1996 absences were excusable under the act although she hadn’t specifically asked for statutory leave. The company responded that it had not considered the earlier leaves, and that Bachelder had exhausted her allowable leave under the “rolling” method of leave calculation.

Under that method—one of four approved by the Department of Labor—the first time an employee takes an allowable leave, if the full 12 weeks allowed by the act are taken, the employee has no right to leave for a full 12 months after returning. If the employee takes less than 12 weeks, the amount of leave allowed during the ensuing 12 months is the balance of the 12-week limit.

U.S. District Judge Roslyn Silver sided with America West on that issue. But Judge Marsha Berzon, writing for the Ninth Circuit, said the district judge was wrong because the airline had never told Bachelder which method it was using.

The appellate jurist acknowledged that the regulations establishing the methods of calculation do not specifically require that employees be notified in advance which method the employer has chosen.

But since interrelated rules—such as one requiring the employer to notify employees 60 days in advance of a change in the method and protecting those with allowable time under the old method—clearly contemplate such notice, it is a fair implication, Berzon said.

 Since Bachelder wasn’t given notice, the judge concluded, she was entitled to rely on the “calendar year” method and to take up to 12 weeks in 1996.


Copyright 2001, Metropolitan News Company