Brian v. ABC
Family Medical Leave Act Claim
BUSI.506 – Legal and Ethical Environment for Business

Presented by:

December 4, 2009

Proposed Question

Brian an employee in a branch office of New York asks for time off for newly adopted child.
Supervisor refuses to give him the time off; claiming only women can take "maternity leave" as noted in the Employment Handbook and that such leave is for the birth of a child and does not include adoptions.
Does Brian have a credible lawsuit to prevail in court?

Brief Answer

Yes, if Brian does not receive his leave he can file suit and would prevail beacuse
Employers covered by FMLA are required to grant leave to eligible employees:
(1) For birth of a son or daughter, and to care for the newborn child ( see §825.120);
(2) For placement with the employee of a son or daughter for adoption or foster care (see §825.121);

Statement of Facts
• Brian employee of NY branch Office is threatening to sue
• Supervisor refuses to give him the time off, claiming only women can take "maternity leave" as noted in the Employment Handbook and that such leave is for the birth of a child and does not include adoptions.
• Supervisor notifies Brian he has only two weeks of vacation and under no circumstances will he be allowed 12 weeks off.
• Discussion
• Under Statue 29CFR825-- PART 825_THE FAMILY AND MEDICAL LEAVE ACT OF 1993 Brian is entitled to take leave before the actual placement or adoption of a child if an absence from work is required for the placement for adoption or foster care to proceed.
• Brian is entitled to 12 weeks of unpaid leave for adoption or foster care
• The supervisor is wrong and the handbook needs to be rewritten.

Discussion:

Several cases will show the different outcomes of this type of case.

Case - Dotson v Pfizer
• Dotson took intermittent pre-adoption leave though, suggests that Dotson's pre-adoption absences were taken intermittently without Pfizer's consent and thus fall outside the FMLA
• Court found that Dotson was entitled to FMLA and the jury awarded him $ 1,876.00 on his FMLA interference claim and $ 331,429.25 on his retaliation claim.

Case - Connor v. Sun Trust Bank

• Connor took FMLA leave when she adopted a child.
• While on leave, her supervisory responsibilities were taken away and her direct reports reassigned.
• After she returned, her supervisor decided to fire her, and informed her two weeks later
• Court concluded that Sun Trust was in their rights because they had shown that they had eliminated her position and not because she was on FMLA leave.
• This case was granted in favor of Sun Trust Case - Bocalbos v. National W. Life Ins. Co.

• Bocalbos requested and was granted leave under the Family Medical Leave Act of 1993 (FMLA) to bring his adopted children to the United States
• Three weeks after the leave was approved, Bocalbos initialed a memorandum in which he was informed by appellant employer that his employment would be terminated if he were not to gain sufficient credits at a Society of Actuaries examination sitting that was within the leave period.
• Bocalbos took the leave and did not take the examinations.
• Bocalbos was terminated.
• Court found that Bocalbos entitlement to FMLA leave expired at the end of the 12-month period that began on the date of such placement. Bocalbos had sought FMLA leave almost three years after his adoption of his children was finalized.
• If this had occurred within the one year window he may have won this case.

Will Brian prevail on his claim?

• Yes because he is entitled to it under FMLA.
• Supervisor has no right to deny any employee their right under FMLA.

Recommendations:
• ABC should grant Brian his leave and make sure his job is there when he returns.
• ABC should help Brian in the paper work required and make sure that all of it is filled out correctly this will benefit both Brian and the company.
• ABC should rewrite their hand book and make sure that it includes all information pertaining to FMLA.
• ABC should hold meeting with all employees and supervisors to make sure everyone understand their rights under FMLA

Conclusion
• Brian would have a case against ABC if they do not let him take the leave in which he is entitled to.
• ABC needs to make sure the entire company is aware of FMLA. References
All cases and laws taken from the LexisNexis Academic (2010) web site.