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Employee’s Failure to Respond To Request for More Information Regarding Leave Request Doomed FMLA Claim

By on July 25, 2011 in FMLA with 1 Comment

Robert Righi worked as a sales rep for SMC Corporation of America.  On several occasions Righi would request vacation time to care for his mother.  He would email his manager, Louis  King, for prior approval.  The company policy was to require employees to obtain prior approval from a supervisor before taking leave. The policy further provided that a failure to report for work for two consecutive days without notifying the supervisor is grounds for termination.

Righi was scheduled to attend a mandatory two-week training session in Indianapolis from July 9, 2006 to July 21, 2006. On July 11, 2006, while attending the seminar, his sister called and left a message that their mother had gone into a diabetic coma.  Righi told a co-worker he was leaving and drove four hours to his home.  His mother’s condition had stabilized by the time of his arrival.

His supervisor, King, did not know the reason Righi had left and called him three times on July 11, 2006.  Since his cell phone was turned off, Righi did not get the calls. King tried again the next morning but received no response. Righi reached King later that morning and left this email message:

I need the next couple days off to make arrangements in an intermediate care facility for my Mother. . . I do have the vacation time, or I could apply for the family care act, which I do not want to do at this time. . . . I hope you can understand my situation and approve this emergency time off.  I will be very busy the next couple of days .. so I might be slow getting back to you.

That was the only contact Righi had with his supervisor or company for the next eight days.

The evidence showed that Righi’s mother did not visit an ER, a physician, or a health care provider during the two-week period beginning July 11, 2006.  For his part, King tried numerous times to reach Righi after receiving the July 12, 2006 email, calling almost every day but never getting Righi on the phone.  He finally got a return call on July 19, 2006 and scheduled a meeting to see Righi the next day. When Righi did return to work he was fired.

Righi sued under the FMLA and argued that he had given sufficient notice to invoke his rights under the FMLA with his email message. The  court first observed that it does not take much to invoke FMLA rights but an employee can waive FMLA rights if that is expressed clearly.  However, in this case the court felt that there was sufficient evidence that Righi had invoked rights under the FMLA because Righi seemed to suggest that he might change his mind about using FMLA time.

What lost the case for Righi was his failure to respond to his supervisor’s phone calls for seven days or make any effort to reach his supervisor.  The court said that SMC made countless attempts to inquire further of his intentions but Righi had turned off his cell phone.  Only when King reached Righi’s roommate on July 19th did Righi return his calls.

Righi’s failure to respond to these calls or otherwise contact his employer dooms his FMLA claim. The FMLA does not authorize employees to ‘keep their employers in the dark about when they will return’ from leave.. . . In all cases, the employee must give his employer notice about the ‘anticipated timing and duration of the

Righi argued that when he said he needed the next couple of days off, that was providing some information on the duration of the leave.  The court rejected this argument saying being out nine straight days is vastly different from needing the next couple of days. The court said it was entirely practicable for Righi to call his supervisor since his mother had been stabilized on July 12th.  He simply did not do it.

This case underscores that the FMLA is not a one-way street.  Employees have duties which, if ignored, may lead to denial of FMLA or even job action, as in this case.  Employers can insist on usual and customary notice and procedural requirements when requesting FMLA leave.

This case may be found at Righi v. SMC Corporation of America, 632 F.3d 404, (7th Cir. 2011).



About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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  1. Nice one John!! Now a days who turns off cell phone for 8 days!! I think this was very fair decision

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