Employee Who Was Harassed for Taking FMLA Leaves During “Blackout Period” Stated FMLA Interference Claim, But No Individual Liability Against Public Employer

By Ted Olsen

According to a new ruling from the New Mexico federal district court, employers may not declare "blackout periods" during which time Family and Medical Leave Act leave requests will be denied or will be judged by stricter standards. Nor may employers harass employees who exercise their rights to take FMLA leaves. However, the FMLA does not support claims for individual liability against harassing supervisors of a public sector employer.

In Baca v State of New Mexico, 10cv0096 JCH/LFG (D.N.M. Sept. 30, 2011), the New Mexico Secretary of State allegedly instituted a policy pronouncing that "blackout periods" would be periodically declared by the Secretary of State, during which time leave requests would be denied entirely or held to a more strict standard. For example, the Secretary of State's policies stated:

This means that employees are not allowed to take annual or personal leave during specific dates as identified by the NM Secretary of State, except for reasons of an extreme emergency or due to being ill. Those blackout periods may be imposed for reasons such as, but not limited to: 1) the New Mexico Legislature annual scheduled sessions for either the 30-day session or the 60-day session; 2) when a special session is called by the Governor or NM State Legislature; 3) during an election or any other time as required by the Secretary of State's Office in order to assist members of the NM State Legislature and the public. Employees will be notified in advance via email, memorandum and through their Immediate Supervisors. During a Blackout Period, Sick leave will require a doctor's justification in writing.

The plaintiff in Baca requested assorted leaves to provide medical care for her disabled adult son (for whom she was guardian) and her disabled daughter-in-law, to care for their new grandchild, and to obtain medical care for her own health conditions. She claimed that the Secretary of State initially refused her requests based on the declared "blackout periods." When the Secretary of State later relented, the leave requests were allegedly denied based on the purported insufficiency of the medical records presented to support the leave requests (for example, they did not expressly state that the circumstances were "emergencies"). According to the plaintiff's allegations, when the employee took the leaves of absence, she was then ridiculed by the Secretary of State and encouraged to resign. Human Resources allegedly advised her that her requests for time off for medical appointments would be scrutinized to verify if they were medically necessary. The U.S. District Court for the District of New Mexico ruled that these allegations were sufficient to raise interference and retaliation claims under the FMLA, as well as assorted state law claims.

Perhaps more notably, the Court ruled that the FMLA does not provide for individual liability against public employers, and dismissed the plaintiff's claims against the Secretary of State individually. (There is no individual liability in the private sector.) In reaching his conclusion, the Court observed that the Tenth Circuit Court of Appeals (where Colorado is located) has not decided this question. Other courts in the nation presented with this issue have reached conflicting conclusions. See, e.g., Weber v. Illinois E. Community College Dist. 529, 2010 U.S. Dist. LEXIS 121458 (S.D. Ill. Nov. 17, 2010) (employees of a public employer are not individually liable under the FMLA).

Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation and does not create an attorney-client relationship between any reader and the Firm.

©2011 Sherman & Howard L.L.C. November 1, 2011

	Contact Us Services Attorneys News and Events Publications About the Firm Inclusiveness Careers Blog In the Media Events and Registration Press Releases Speaking Engagements Articles Client Advisories Subscriptions History Offices Pro Bono Interlaw Contact Us Culture Legal Opportunities Support Staff Publications Client Advisories Home > Publications > Client Advisories > View Employee Who Was Harassed for Taking FMLA Leaves During “Blackout Period” Stated FMLA Interference Claim, But No Individual Liability Against Public Employer By Ted Olsen According to a new ruling from the New Mexico federal district court, employers may not declare "blackout periods" during which time Family and Medical Leave Act leave requests will be denied or will be judged by stricter standards. Nor may employers harass employees who exercise their rights to take FMLA leaves. However, the FMLA does not support claims for individual liability against harassing supervisors of a public sector employer. In Baca v State of New Mexico, 10cv0096 JCH/LFG (D.N.M. Sept. 30, 2011), the New Mexico Secretary of State allegedly instituted a policy pronouncing that "blackout periods" would be periodically declared by the Secretary of State, during which time leave requests would be denied entirely or held to a more strict standard. For example, the Secretary of State's policies stated: This means that employees are not allowed to take annual or personal leave during specific dates as identified by the NM Secretary of State, except for reasons of an extreme emergency or due to being ill. Those blackout periods may be imposed for reasons such as, but not limited to: 1) the New Mexico Legislature annual scheduled sessions for either the 30-day session or the 60-day session; 2) when a special session is called by the Governor or NM State Legislature; 3) during an election or any other time as required by the Secretary of State's Office in order to assist members of the NM State Legislature and the public. Employees will be notified in advance via email, memorandum and through their Immediate Supervisors. During a Blackout Period, Sick leave will require a doctor's justification in writing. The plaintiff in Baca requested assorted leaves to provide medical care for her disabled adult son (for whom she was guardian) and her disabled daughter-in-law, to care for their new grandchild, and to obtain medical care for her own health conditions. She claimed that the Secretary of State initially refused her requests based on the declared "blackout periods." When the Secretary of State later relented, the leave requests were allegedly denied based on the purported insufficiency of the medical records presented to support the leave requests (for example, they did not expressly state that the circumstances were "emergencies"). According to the plaintiff's allegations, when the employee took the leaves of absence, she was then ridiculed by the Secretary of State and encouraged to resign. Human Resources allegedly advised her that her requests for time off for medical appointments would be scrutinized to verify if they were medically necessary. The U.S. District Court for the District of New Mexico ruled that these allegations were sufficient to raise interference and retaliation claims under the FMLA, as well as assorted state law claims. Perhaps more notably, the Court ruled that the FMLA does not provide for individual liability against public employers, and dismissed the plaintiff's claims against the Secretary of State individually. (There is no individual liability in the private sector.) In reaching his conclusion, the Court observed that the Tenth Circuit Court of Appeals (where Colorado is located) has not decided this question. Other courts in the nation presented with this issue have reached conflicting conclusions. See, e.g., Weber v. Illinois E. Community College Dist. 529, 2010 U.S. Dist. LEXIS 121458 (S.D. Ill. Nov. 17, 2010) (employees of a public employer are not individually liable under the FMLA). Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation and does not create an attorney-client relationship between any reader and the Firm. ©2011 Sherman & Howard L.L.C. November 1, 2011 Copyright 2000-2013 Sherman & Howard L.L.C. All rights reserved. Privacy Policy \| Terms of Use