In a case where a company argued that an employee’s Family and Medical Leave Act claim failed because the statute required him to use the company’s “usual and customary notice and procedural requirements for requesting leave” and he used Facebook Messenger instead of the company’s call-in line, but the company had previously allowed the employee to report leave requests that way, the 4th U.S. Circuit Court of Appeals has held there was a genuine issue of material fact for a jury to decide.
Plaintiff Kasey Roberts appealed a grant of summary judgment to his former employer, Gestamp West Virginia, on FMLA and common law retaliatory-discharge claims. Gestamp fired Roberts after he missed work due to a recurring infection from an emergency appendectomy.
A federal district court granted Gestamp’s summary judgment motion because it said Roberts didn’t comply with the company’s “usual and customary” absentee notice procedures, as the FMLA requires.
No one disputed that Roberts’s condition was FMLA-qualifying or that firing him during FMLA leave would interfere with his rights under the act. His claim turned on whether Roberts provided Gestamp adequate notice of his need for FMLA leave.
Gestamp contended (and the district court agreed) that Roberts’s interference claim fails because he didn’t use the company’s call-in line for reporting absences.
But the appellate court concluded that the district court erred in resolving this issue at summary judgment because the relevant FMLA regulation is more flexible than Gestamp and the district court suggest. In short, it requires an employee to comply with an employer’s “usual and customary notice and procedural requirements for requesting leave.”
“Usual and customary” procedures include any method that an employer has, by informal practice or course of dealing with the employee, regularly accepted, along with those in the employer’s written attendance policy.
Here, Roberts raised a genuine factual dispute over whether it was “usual and customary” to report his absences by messaging his supervisor, Gary Slater, on Facebook. Roberts’s Facebook messages with Slater show that they routinely discussed his appendicitis and resulting hospital stays over that medium. Neither Slater nor anyone else at Gestamp disciplined Roberts for using Facebook Messenger over this period or asked that he use the call-in line instead, and Gestamp credited Roberts with FMLA leave on those earlier occasions.
It’s true, as Gestamp emphasized, that a few months before Roberts’s appendectomy, Slater disciplined him for failing to use the call-in line for an unrelated absence. But on another occasion, Slater used Facebook Messenger to ask Roberts about an infection for which he missed work, and Roberts wasn’t disciplined for not using the call-in line then. What’s more, Gestamp conceded that Roberts’s use of Facebook Messenger to notify Slater about his first surgery was acceptable because it was an emergency. So properly construing the evidence in Roberts’s favor, a reasonable jury could find that his Facebook messages to Slater satisfied Gestamp’s “usual and customary” notice procedures under the FMLA.