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