Eleventh Circuit Punts on FMLA Estoppel
A recent case presented the Eleventh Circuit with this novel question: if an employer grants FMLA leave to an employee who is not FMLA eligible, is the employer “estopped” (or precluded) from denying the employee’s FMLA eligibility in subsequent litigation? The appellate court’s answer: come back another day.
The case, Dawkins v. Fulton County Government, involved a Fulton County employee who was demoted shortly after she took leave to care for an ailing uncle. 2013 WL 5422977, at *1-2 (11thCir. Sept. 20, 2013). Prior to taking leave, she sent an email to her supervisors, with the subject line “FMLA,” which read as follows:
I am requesting emergency leave from October 19, 2007 to November 2, 2007, to assist my dad, Kenneth Dawkins, while he deals with issues surrounding his terminally ill brother. Additionally I am requesting for a[n] FMLA package to be sent to: [Florida address].
Id. at *1. Two hours later, the employee’s manager replied, simply, “Approved.” Id. When Fulton County demoted the employee after she returned from leave, she sued for FMLA retaliation. Id.Although the employee admitted that her leave was not covered by the FMLA, she argued that the doctrine of “equitable estoppel” precluded Fulton County from pressing that argument since it approved her FMLA leave request. Id.
The employee’s argument was a novel one. As the Eleventh Circuit noted in its opinion, it had “never decided that equitable estoppel can extend FMLA coverage to otherwise unqualified absences from work.” Id. at *3. Therefore, accepting the employee’s argument would have “require[d] [the] court to create a new federal common law equitable estoppel applicable to the FMLA.” Id. at * 5.
Ultimately, the Court declined to do so. It held that, even if equitable estoppel applied, the employee could not satisfy one of the doctrine’s five elements: reasonable and detrimental reliance. Id. at *4. Because the employee had previously applied for and taken a covered FMLA leave, the Eleventh Circuit reasoned that she knew or should have known that the leave at issue was not FMLA-eligible. Id. She could not, therefore, have reasonably relied on Fulton County’s purported approval of her FMLA leave request. Id. Since the employee could not satisfy the elements of equitable estoppel, the court concluded that it “need not decide at this time whether [that doctrine] should apply to the FMLA.” Id. at *3.
This case holds two lessons for employers. The first is obvious. Equitable estoppel as a theoretical argument remains viable in Eleventh Circuit FMLA cases. If an employer grants FMLA leave to an ineligible employee, it can expect to encounter an equitable estoppel argument in any subsequent litigation related to the leave. The second lesson relates to email usage. If the employer in this case had been more careful in responding to the employee’s email seeking FMLA leave—such as by responding “you can take leave, but it’s not FMLA leave”—then the FMLA retaliation claim may have been avoided. This case therefore presents yet another example of how the informality of email (and other forms of social media) can create problems for employers.