Pregnant Worker Protected by FMLA Despite Timing of Leave Request: Court

By Judy Greenwald

Jan. 13, 2012

The Family and Medical Leave Act protects a pregnant worker who was fired after she requested leave, even though she was not yet eligible for leave when she made the request, an appeals court has ruled in a case of first impression that overturns a lower court ruling.

According to the Jan. 11 ruling by the 11th U.S. Circuit Court of Appeals in Atlanta in Kathryn Pereda vs. Brookdale Senior Living Communities Inc., Pereda began working at a Brookdale facility in Pompano Beach, Florida, in October 2008. In June 2009 the company was told that she was pregnant and would be requesting leave after her child’s birth on or about Nov. 30.

Although she had previously been considered a “top employee,” after learning of her pregnancy “Brookdale began harassing her, causing stress and other complications in her pregnancy.” In addition, Pereda alleged “Brookdale’s management began denigrating her job performance and placed her on a performance improvement plan with unattainable goals.”

Pereda was terminated in September 2009 after taking time off at her physician’s direction, according to the lawsuit.

She filed suit in May 2010, accusing Brookdale of interference and retaliation under the FMLA. In September 2010, a federal court dismissed her case, ruling Brookdale could not have interfered with her FMLA rights because she was not entitled to FMLA leave at the time she had requested it, nor could Brookdale have retaliated against her.

In overturning that ruling, the appeals court said it is undisputed that at the time she requested the leave, she had not worked the requisite hours and had not yet experienced a “triggering event”—the birth of her child. It is also undisputed, however, that she would have been entitled to FMLA protection by the time she gave birth and began her requested leave, said the three-judge panel’s unanimous opinion.

“Allowing the district court’s ruling to stand would violate the purposes for which the FMLA was enacted. Without protecting against pre-eligibility interference, a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible. Such a situation is contrary to the basic concept of the FMLA,” the court ruled in the case of first impression for that court.

The case was remanded for further proceedings.

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. To comment, email

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Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management.

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