6th Circ. Tosses Auto Parts Maker’s FMLA Win

November 12, 2019

Law360 (August 8, 2019, 10:15 PM EDT) -- The Sixth Circuit on Thursday revived a Family and Medical Leave Act suit from a former technician for an automotive supplier, finding that a jury could conclude the company ran afoul of the law by resetting his attendance clock when he took protected time off for migraines.

The three-judge panel unanimously found that the district court had been wrong to grant Ventra Sandusky LLC summary judgment in Jerremy Dyer's suit alleging that the company interfered with his ability to take FMLA leave. Dyer had sued Ventra Sandusky in November 2016 after he was fired for accumulating 12 points under the company's no-fault attendance policy, the opinion said.

 According to the opinion, between 0.5 and 1.5 points were assigned to employee absences depending on the circumstances surrounding them, though no points were given for FMLA leave. Workers were progressively disciplined as they accumulated points, and termination would occur after a worker had 11 or more points, the opinion said.

However, employees could reduce their total by one point if they had perfect attendance for 30 days, according to the opinion. While certain forms of time off would count toward the 30-day attendance period, taking FMLA and some other forms of leave would result in a resetting of the clock, the opinion said.

Ultimately, the policy prejudiced Dyer because his FMLA leave kept him from being able to achieve the "perfect attendance" necessary to reduce his points, the panel said.

"Resetting Dyer's perfect-attendance clock every time he took FMLA leave effectively denied him the flexibility of the no-fault attendance policy that every other employee not taking FMLA leave enjoyed," U.S. Circuit Judge Gilbert S. Merritt wrote in the panel's opinion.

The panel noted that though workers aren't entitled to accrue benefits while on FMLA leave, the benefits they accrued before taking leave had to be available to them when they returned. Though Ventra Sandusky contended that no benefit accrued until the 30th day when a point was dropped, the panel wasn't convinced.

"Ventra Sandusky's reading would allow employers to discourage FMLA leave by creating high thresholds for point reduction that could never realistically be met by anyone taking such leave," Judge Merritt wrote. "For these reasons, a jury could find that Ventra Sandusky's policy interfered with Dyer's FMLA rights by not freezing the accrual of perfect attendance during his leave."

The district court also erred by finding that the policy didn't violate the FMLA because "equivalent" types of non-FMLA leave also disrupted workers' attendance records, the panel said. There was a question of what kinds of leave were "equivalent" and whether they were treated the same under the policy, the panel found.

Dennis E. Murray Jr., who is representing Dyer, told Law360 on Thursday that the company has since dropped the challenged practice. The court's decision was an "affirmation that we as a country have made a decision that this is important to us, both in terms of fair treatment of individuals and in terms of economic prosperity," Murray said.

"If we have people like Jerremy Dyer, who because he gets migraines can't work, we have someone who is on public assistance instead of being productive and contributing to the well-being of society as a whole as well as his own family," Murray said.

Counsel for Ventra Sandusky didn't respond Thursday to a request for comment.

U.S. Circuit Judges Gilbert S. Merritt, Eric L. Clay and John M. Rogers sat on the panel for the Sixth Circuit.

Dyer is represented by Dennis E. Murray Jr. of Murray & Murray Co. LPA.

Sandusky is represented by Carrie L. Urrutia of Eastman & Smith Ltd.

The case is Jerremy Dyer v. Ventra Sandusky LLC, case number 18-3802, in the U.S. Court of Appeals for the Sixth Circuit.

--Editing by Bruce Goldman.

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