Monday, March 15, 2010
Erdman v Nationwide Ins Co, ___F.Supp.2d____(M.D. Pa.January 15, 2010), is an interesting case. An employee who applied for FMLA leave after being denied vacation time to prepare her Down Syndrome child for school and then was terminated for purported behavioral problems offered enough evidence to support a reasonable jury finding that she was discharged for attempting to invoke her FMLA rights. The company had revoked the employee's modified work schedule, initially implemented so that she could care for her disabled daughter, and notified her that it would eliminate her job unless she accepted a full-time position with a standard schedule. While she agreed to the schedule, she sought confirmation of, but was denied, her previously requested vacation to prepare her daughter for school. When the employee stated that she would use FMLA leave if her vacation request was not approved, she was fired for multiple incidents of inappropriate workplace behavior. Denying claims of FMLA interference and retaliation, the employer argued that it had offered the employee a full-time position, granting her full-time status even though she declared her intent to seek FMLA leave before accepting the company's offer. However, given the facts alleged, a reasonable factfinder could discredit the contention that employee misconduct prompted the discharge, the court concluded.
Mitchell H. Rubinstein