McNamara v. Trinity College
Allegations that a worker requested leave to care for his wife after surgery, that he was not offered Family and Medical Leave Act leave, and that he was discharged for taking FMLA-qualifying leave, may be sufficient to allege an FMLA retaliation claim. Trinity College hired Terrence McNamara as the assistant director of alumni services. On Oct. 3, 2011, McNamara's wife underwent hip replacement surgery. McNamara requested time to care for his wife. McNamara alleged that Trinity did not inform him about his FMLA rights or offer FMLA leave. On October 18, McNamara allegedly received a reprimand for missing two weeks of work. McNamara returned and took absences on October 21 and November 16 to 18, because his child was ill. Trinity discharged McNamara, because he failed to report to work November 16 to 18. McNamara sued Trinity, alleging it failed to inform him about his rights and to designate his leave as FMLA leave. Trinity moved to dismiss McNamara's retaliation count, arguing that McNamara never requested FMLA leave and could not allege FMLA retaliation for a nonexistent FMLA leave. The FMLA permits an eligible worker to take up to 12 weeks of leave to care for a spouse or child who suffers from a serious health condition. An individual may exercise rights under the FMLA when the individual provides the employer sufficient information of an intent to take leave that may qualify as FMLA leave?even if the individual does not mention the FMLA. "FMLA retaliation," wrote the District Court, "may be based on proof of a plaintiff's inquiry notice to his employer that he was requesting potentially FMLA-qualifying leave, even though he may have been unaware of the FMLA's application to his request." To prevail, the plaintiff will be required to prove he took a de facto FMLA leave, that Trinity knew or should have known he was eligible for FMLA leave, and that Trinity discharged the plaintiff for taking FMLA eligible leave. "Plaintiff's failure to have requested or inquired about FMLA leave," wrote the court, "does not bar his retaliation claim." The court denied Trinity's motion to dismiss.