Seventh Circuit Holds That FMLA Limitations Period Begins To Run At Time Of Each Leave Denial
On October 20, the Seventh Circuit held, in Barrett v. Illinois Department of Corrections, that a former state employee’s Family and Medical Leave Act (“FMLA”) denial of leave claim was untimely because suit was not filed until the employee was fired for her poor attendance record and not within two years of each alleged leave denial. This case was an issue of first impression before the Seventh Circuit.
The Illinois Department of Corrections fired Cindy Barrett in October 2010 after she violated Department policy by accumulating 12 unauthorized absences. However, Ms. Barrett alleged that three of those absences, in December 2003, December 2004, and August 2005, were protected under the FMLA. Ms. Barrett challenged each disputed unauthorized absence with the Department’s Employee Review Board, but the Board upheld discipline. Following her termination, Ms. Barrett, in January 2012, brought suit against the Department under the FMLA.
The Seventh Circuit upheld the district court’s ruling in favor of the Department because Ms. Barrett did not file suit within two years of her last leave denial. To arrive at its determination, the court reviewed the FMLA’s statutory text, which, in relevant part, explains that an action may be brought “not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.” The court read the text to mean that where an employee alleges that an employer violated the FMLA by denying qualifying leave, the claimed “last event” will ordinarily “be the employer’s rejection of the employee’s request for leave.” Therefore, the court found that “[e]ach time the Employee Review Board ruled against Barrett, an actionable FMLA claim accrued and the limitations clock started to run.” As such, the court ruled that for Ms. Barrett to timely file suit, she would have had to bring her claim within two years of the December 2003, December 2004, and August 2005 leave denials. By January 2012, Ms. Barrett’s suit “was several years too late.”
The Seventh Circuit is now aligned with the Eighth Circuit, which also has held that an FMLA violation occurs when an employer improperly denies an employee’s leave request and not when an employee is later terminated for excessive absences. In contrast, the Sixth Circuit has held that an employee fired for excessive absenteeism may still challenge her termination even if the limitations period for the alleged FMLA-protected absence had expired.