Employee’s lack of leave notice dooms her FMLA case

On February 1, 2018, the employer hired Deborah as a credit representative. In August of that year, Deborah’s husband was diagnosed with stage four pancreatic cancer. He began treatment the next month. Because his prognosis was terminal, Deborah didn’t know how long the treatments would last. She notified the employer of her husband’s diagnosis on or about September 5, 2018.

Each week, Deborah and her husband traveled to a medical facility. They stayed at the facility from Thursday to Sunday while Deborah’s husband underwent treatment. Deborah worked remotely on Thursdays and Fridays. Citing customer complaints, Russell, Deborah’s supervisor, tried to cancel her remote working arrangement on two occasions.

On December 10, 2018, Russell put Deborah on a written performance improvement plan (PIP). The PIP set goals for Deborah to complete by January 10, 2019. Deborah told Erin from HR that she felt the timeline was less than ideal, given her eligibility to apply for leave under the federal Family and Medical Leave Act (FMLA) within a couple of weeks of completing the PIP.

Deborah didn’t meet the PIP requirements, and the company fired her on January 10, 2019.

Deborah sued, in part claiming that the employer violated the FMLA. The employer argued that Deborah had not reached her first employment anniversary to become eligible for FMLA leave on the date she was fired.

The court said that even though the FMLA gives employees protection if, before becoming FMLA eligible, employees put their employer on notice that they were requesting leave to be taken once they became eligible for FMLA leave. Deborah never put her employer on notice that she was requesting FMLA leave once she became eligible.

Deborah didn’t know by January 3, 2019, whether she intended to request FMLA leave in February or whether her husband would have any treatment that month when she would become FMLA eligible.

She didn’t mention an intent to take FMLA leave after January 3, 2019. Therefore, the court didn’t allow the FMLA claim to proceed.

Deborah had also filed a claim under the federal Americans with Disabilities Act’s association principle, which the court allowed to proceed.

Clevenger v. A.M. Castle & Co., Northern District of Illinois, No. 21-CV-5889, March 31, 2025.

Key to remember: Employers may not fire employees because they ask for FMLA leave. Employees must, however, actually put employers on notice of the need for leave.