February 4, 2013

Kentucky Family Medical Leave Act (FMLA) and Pregnancy Discrimination Case

In July of 2012, the United States District Court for the Eastern District of Kentucky decided a case that involved the FMLA and KCRA. (See Doolin v. Hinkle Contracting Corp., 2012 WL 3028510 (E.D. Ky. 2012)).

Plaintiff was hired by Defendant to work as a truck diver in February of 2007. She was also required do things such as ‘flagging’. In February of 2008, Plaintiff notified her superiors that she was pregnant and due in October of 2008. Plaintiff slowly noticed that her job duties started to change after she told them about her pregnancy. (It was at this time she should have contacted a pregnancy discrimination lawyer).

In mid-March Plaintiff was instructed by a superior to get a medical letter from her doctor telling her it was ok to continue to work. She got this but the doctor put that she was not to lift anything over 25 pounds. Also, a superior had said to her that if it was his wife he would not want her working there while she was pregnant, to which plaintiff replied she had no choice, she needed the money. Id.

Then a week or so later, Plaintiff, while flagging, started to experience pain in her stomach and had to leave. She was told not to return to work without first having seen a doctor. She did so and the note the doctor gave was to take her off work. But, she still plead with her superior to let her work, to which he said no. Plaintiff finally had her child and after tried to come back to work. But, Defendant, citing the economy, did not hire her back. So Plaintiff brought this Kentucky FMLA and pregnancy discrimination lawsuit.

“Under the pregnancy discrimination act an employer is obliged to ignore a woman’s’ pregnancy and ‘to treat the employee as well as it would have if she were not pregnant.’” (cites omitted). But, in this case, that did not occur. Defendants clearly treated Plaintiff differently because of her pregnancy and thus, based on both the circumstantial and direct evidence presented, Defendants’ motion to dismiss was denied.

Next, as to the Kentucky FMLA claim, the court noted “The FMLA affords an eligible employee up to twelve weeks of leave within a twelve month period when the employee suffers from a serious health condition that makes the employee unable to perform the functions of his position.” (cites omitted).

To establish her rights under the FMLA, Plaintiff must prove that “1, she was an eligible employee, 2, the defendant was an employer as defined under the FMLA, 3, she was entitled to leave under the FMLA, 4, she gave the employer notice of her intention to take leave, and 5, the employer denied the employee FMLA benefits to which she was entitled.” (cites omitted).

As to this Kentucky FMLA count, Plaintiff’s claim must fail. She could not satisfy all five elements. Plaintiff was fired on April 24 but did not notify Defendant of her FMLA need until April 25. So Plaintiff was not an eligible employee under the FMLA. Further, Plaintiff took off more than the 12 weeks of eligible time. Thus, Defendants per the FMLA did not have to protect her job once she stayed out of work for more than 12 weeks.

If you have been the subject of a Kentucky Family Medical Leave Act (FMLA) and Pregnancy Discrimination case, please call and speak to a Kentucky Family Medical Leave Act (FMLA) and Pregnancy Discrimination lawyer at the Law Offices of Andrew Alitowski, P.A. at 888-ASK-ANDREW (888-275-2637) or contact us. We are available 24 hours a day, 7 days a week.

If you are injured…Ask Andrew!!!