In Bachelder v. America West Airlines, Inc. (9th Cir., August 8, 2001, No. 99-17458) 2001 U.S. App. Lexis 17691, the Ninth Circuit Court of Appeals decided several questions regarding the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2612 et seq.
Penny Bachelder worked for America West Airlines. During 1994 and 1995, Bachelder took two periods of extended leave that were covered by the FMLA. In February1996, Bachelder was again absent from work for three weeks due to a personal medical condition, and in April 1996, Bachelder called in sick for one day to care for her ill child. Subsequently, America West fired Bachelder, in part because she had been absent from work 16 times since being counseled about her attendance.
Bachelder sued America West for wrongful termination, arguing that it had incorrectly considered her use of FMLA leave in its decision to terminate her. America West argued that, based on its method of calculating leave time under the FMLA (which included consideration of the 1995 leave time), Bachelder had used her twelve weeks of leave and her February absences were not covered by the FMLA.
On appeal, the Ninth Circuit Court of Appeals first noted that the FMLA created two rights for employees: first, the right to use a certain amount of leave time for personal illnesses, to care for family members who are ill, or to care for new babies; and, second, the right to return to their jobs after using protected leave. Employers cannot interfere with, restrain, or deny an employee’s right to take this protected leave. In other words, employers cannot use the taking of FMLA leave as a negative factor in employment actions. Therefore, in order to win her claim of wrongful termination, Bachelder only had to prove that her taking of FMLA leave was a negative factor in the decision to terminate her.
The Court of Appeals next turned to the issue of whether the leave that Bachelder took in 1996 was protected leave under the FMLA. It noted that, if the leave was protected, America West would be liable because it based its decision to fire Bachelder, in part, on her sixteen absences in 1996; in other words, the taking of the leave was a negative factor in the decision to fire her.
The FMLA allows employees to take twelve weeks of protected leave in a twelve-month period. The federal regulations regarding the FMLA give employers four options in calculating the relevant twelve-month period. [29 C.F.R. § 825.200 (July 1, 2000).] However, an employer must apply its chosen method of calculating the twelve-month period in a consistent manner. Furthermore, according to the Court of Appeals’ decision, the employer must make known to its employees what method it has chosen. If an employee requests leave before the employer informs the employees of its method of calculation, the employer must calculate the twelve-month period in a manner that gives the employee the most beneficial outcome.
Because America West had not informed its employees of its chosen method of calculating the twelve-month period, the Court of Appeals looked at the four calculation methods to see which was the most favorable to Bachelder and determined that the calendar year method was most favorable. Therefore, Bachelder’s February absences were protected by the FMLA and America West violated the FMLA when it used the absences in deciding to fire her. The Court of Appeals also noted that the two other reasons for firing Bachelder were immaterial because America West could not consider the FMLA leave at all in deciding to fire her.
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