Tuesday, September 9, 2008
Our own Paul Secunda sent me the BNA report on this FMLA case. It's a doozy. Late last week, the Seventh Circuit issued an opinion in Pirant v. U.S. Postal Services, considering whether the employee there was covered by the FMLA. Ms. Pirant was hired in 1993 as a mail handler, and she was terminated at least four times and also received multiday suspensions all for excessive absences. Each time she was terminated, Pirant convinced her superiors to reduce the termination to a suspension, which is why she was still employed by the USPS for the incident that gave rise to this suit.
In March 2001 she entered into a "last chance agreement," agreeing that more unexcused absences would mean termination. She was absent from August 14 to September 25, 2001 and was given a 30 day notice of termination on September 28. On October 5, she was told to clock out two hours early, a short suspension for insubordination. Subsequent to that, she convinced a supervisor to postpone the termination date until December 10, and then on December 6, she missed work again. Subsequently, she was seen for carpal tunnel syndrome and arthritis, and a doctor directed her not to work December 10 through the 14th. On January 4, 2002, the USPS finally terminated her.
Pirant grieved her termination but was not sucessful and so brought an FMLA claim, alleging that she was discharged for taking medical leave. Unfortunately, Pirant had been clocked in for only 1249.8 hours in the previous 12 months. That's 12 minutes shy of the 1250 hours required to be eligible for FMLA leave, and so the 7th Circuit affirmed summary judgment in favor of the USPS. If she hadn't received that two hour suspension, she would have been covered. But she failed to follow the USPS's internal procedures to contest that suspension.
This case seems a cautionary tale on so many levels. The employee had a very serious attendance problem, clearly. But if the reason for her attendance problem was her health, particularly chronic arthritis, then she seems a little less unsympathetic. And she was doing something to convince all of those supervisors to keep giving her more chances. At the same time, getting that diagnosed earlier and working with the USPS on the issue would have been much better for her. This plaintiff also clearly slept on rights that she might have had. But if she didn't understand the importance of the legal consequences, it's harder to say that her choice wasn't rational.
In the end, if this had been a model employee with a perfect work record, the Seventh Circuit might have reasoned its way around those missing twelve minutes.