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Winners This Week: Crimson Tide Football and FMLA Rights

By Robyn Hagan Cain on January 10, 2012 | Last updated on March 21, 2019

The Alabama Crimson Tide football team and Kathryn Pereda have one thing in common: winning when it counts.

For the Crimson Tide football players, the win that mattered was last night’s BCS National Championship victory over our beloved LSU Tigers. (Well played, Nick Saban and crew.)

For Kathryn Pereda, the critical win was today’s Eleventh Circuit Court of Appeals ruling reinstating her FMLA rights violation case after a 12(b)(6) dismissal in the district court.

Pereda sued Brookdale Senior Living Communities for interference and retaliation under the Family and Medical Leave Act (FMLA), claiming that Brookdale fired her because she was pregnant and requested leave related to her pregnancy.

Pereda started working at a Brookdale facility in October 2008. She was terminated 11 months later, in September 2009. In June 2009, Brookdale was advised that Pereda was pregnant and would be requesting FMLA leave after the birth of her child on or about November 30, 2009.

Pereda alleges that, prior to Brookdale learning about her pregnancy, she was a top employee. After learning about her pregnancy, Pereda alleges that Brookdale began harassing her, causing stress and other complications in her pregnancy. Pereda claims Brookdale sent mixed messages regarding medical leave, telling her that she could go to doctor's appointments or take sick leave, and then penalizing her for doing so.

In September 2009, Pereda used her accrued sick, personal, and vacation days to take non-FMLA leave in response to pregnancy-related medical issues. She left a message with the facility's Executive Director regarding the leave, but never received a response. When she finally spoke to someone at Brookdale, she was fired.

Pereda subsequently sued, claiming that Brookdale interfered with her FMLA rights, because Brookdale denied Pereda benefits under the FMLA, and terminated her for attempting to exercise those rights.

Brookdale moved for a 12(b)(6) dismissal in the district court. The district court granted the motion, holding that Brookdale could not have interfered with Pereda's FMLA rights, because she was not entitled to FMLA leave at the time that she requested it.

In an issue of first impression, the Eleventh Circuit Court of Appeals reversed the district court, holding that the FMLA protects a pre-eligibility request for post-eligibility maternity leave.

After reviewing elements of the FMLA regulatory scheme, such as the 30-day notice requirement, the Eleventh Circuit concluded that allowing the district court's interpretation violated the purposes for which the FMLA was enacted, creating a loophole whereby an employer has total freedom to terminate an employee before she can ever become eligible. Because the FMLA requires advance notice, logic mandates that FMLA rights allow a cause of action for employees who, like Pereda, exceed the notice requirement.

Pereda may have come up short in her initial match-up with Brookdale, but like the Alabama Crimson Tide football team, she prevailed in the Superdome of justice.

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