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Labor and Employment Team’s Victory is Profiled in Bureau of National Affair’s Daily Labor Report

April 15, 2018

By: Mark H. Dellinger and Jill E. Hall

On April 10, 2018, Judge Thomas E. Johnston of the U.S. District Court for the Southern District for West Virginia granted summary judgment to Frontier West Virginia Inc. (Frontier) in a case brought under the Family and Medical Leave Act (FMLA) by a former employee (the plaintiff).  Specifically, the plaintiff alleged that Frontier interfered with his FMLA rights by denying him requested leave and then retaliated against him for trying to take leave under the FMLA by terminating his employment. As explained in Judge Johnston’s decision, Frontier maintained an attendance “step” program that provided for increasing discipline based on the accumulation of unapproved absences. While the plaintiff received approved FMLA leave for several prior absences, he was denied FMLA leave for a series of absences that occurred in early December 2013. Thereafter, the plaintiff incurred additional, unexcused tardies and absences that resulted in the termination of his employment under the step process of the attendance program. The plaintiff’s employment was terminated in January 2015 and he filed his lawsuit in January 2017.

Under the FMLA, a lawsuit must be filed within two years of a violation unless the violation is considered willful, which will extend the statute of limitations to three years. In this case, Judge Johnston held that the plaintiff’s lawsuit was filed more than three years after Frontier denied his most recent leave request and classified his absences as unexcused. Accordingly, the plaintiff’s lawsuit was barred by the FMLA’s statute of limitations. In arriving at this decision, Judge Johnston noted that the U.S. Circuit Courts of Appeals were split on the issue of whether the statute of limitations begins to run from the date of an employee’s discharge or from the date an employee’s most recent request for FMLA leave is denied and classified as unexcused. While noting that the Fourth Circuit Court of Appeals, which includes West Virginia, has not decided this issue, Judge Johnston’s holding agreed with the decisions issued by the Seventh and Eighth Circuit Courts of Appeals. The Sixth Circuit Court of Appeals has taken a contrary view by holding that the statute of limitations begins to run from the date of an employee’s discharge.     

Mark Dellinger and Jill Hall were the members of Jackson Kelly’s Labor and Employment Team who represented Frontier in this case.

Follow this link to access a copy of Judge Johnston’s Memorandum Opinion and Order. Read a copy of the Daily Labor Report article profiling this decision here, which is reproduced with permission from Daily Labor Report, 70 DLR 27 (Apr. 11, 2018). Copyright 2018 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com.


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