No Right to Reinstatement Under FMLA Where No Leave Actually Taken

This case arises out of the termination of a hospital employee after he requested leave pursuant to the Family Medical Leave Act (“FMLA”). The trial court, however, found no evidence that the hospital interfered with the technologist’s right to take FMLA leave or that he was terminated as a result of his request for FMLA leave. The appeals court agreed with the trial court’s decision.


The employee, a technologist who worked in the radiology department of a hospital, had difficulty getting along with the head radiologist. There was a dispute between the technologist and the head radiologist as to whether the technologist actually failed to perform a task that he was written up for. A few months later, the head radiologist reported the technologist after he apparently saw the technologist contaminate a sterile tray before a patient procedure. The technologist was given a final disciplinary warning for the contamination incident, which was later withdrawn and replaced with a non-disciplinary corrective measure.

About the same time as the contamination incident, the technologist told the hospital he was going to have knee replacement surgery and requested leave under the FMLA. The technologist informed human resources, completed the necessary FMLA paperwork and returned it to the hospital approximately one month before his scheduled surgery. Meanwhile, the technologist’s workplace difficulties continued. The technologist received another quality action form for failing to document a patient’s allergies. The technologist met with human resources and afterwards there was confusion as to whether the technologist resigned. A subsequent meeting was held during which the technologist expressed that he did not want to work in the radiology department anymore and requested to switch to part time to allow him to go back to school. Shortly after that meeting, the technologist was fired, but the hospital told the technologist that if he still underwent his knee surgery, he would be offered 12 weeks FMLA leave with health insurance coverage. The technologist cancelled his knee surgery anyway and filed a lawsuit against the hospital.


The technologist argued that the hospital interfered with his FMLA rights, specifically, that the hospital withheld his right to reinstatement by firing him before he took leave. To be successful on an interference claim, an employee must prove he or she was entitled to a benefit under the FMLA that the employer withheld. Under the FMLA, an eligible employee who takes leave, is entitled to reinstatement on return from the leave. Because the technologist’s FMLA leave never commenced, he cannot “return” from the leave, and therefore, the hospital could not have withheld the right to reinstatement.


The technologist also claimed he requested FMLA and was terminated as a result. To make out a retaliation claim under the FMLA, an employee must prove he invoked his or her right to FMLA and sustained an adverse employment action as a result. The appeals court explained that while temporal proximity between a FMLA-protected activity and an adverse action can be unduly suggestive, it was not the case here. More than thirty days elapsed between the time the technologist requested FMLA leave and when he was terminated. The appeals court examined the record and found it devoid of any evidence that would permit a reasonable jury to conclude that the hospital retaliated against the technologist for invoking his FMLA rights.


Accordingly, the appeals court affirmed the trial court’s ruling in the hospital’s favor on both claims.

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Laura Mallory

Laura Mallory is an Attorney in the Litigation Section of King & Ballow in Nashville, Tennessee. Before joining King & Ballow, Laura served as a Judicial Law Clerk for the Honorable William L’E Wertheimer, Superior Court of New Jersey, Civil Division.

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