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An employee’s FMLA retaliation claim failed because the absences for which he received two suspensions were not protected by the FMLA, ruled a federal district court in Illinois. The employee was given a 14-day suspension after he accumulated five unscheduled absences during the proceeding three month period. A year later, the employee received another 14-day suspension for accumulating four unscheduled absences and four late arrivals within a three-month period. The employee challenged both suspensions. He claimed that the first suspension was given in retaliation for taking leave when his children had the chicken pox and that the second suspension was given in retaliation for challenging the first suspension.( Evans v Henderson, NDIll, 80 EPD 40,424). The FMLA only covers leave to care for a child with a “serious health condition” when the period of incapacity lasts more than three consecutive days. The employee’s suspensions were based on accumulated single day absences. Therefore, the absences were not protected by the FMLA. The employee’s extended leave of absence was also not protected by the FMLA because he failed to show that he requested time off to care for his children. He failed to show that he informed the employer that his children had the chicken pox when he returned to work and did not indicate how much of the time taken was due to his children’s illnesses. Moreover, the suspension challenges did not mention the FMLA or FMLA-protected activities. The employee’s retaliation claim would have failed even if he had engaged in a protected activity because he was unable to establish a causal connection between the alleged activity and his discharge, stated the court. He was discharged two years after he challenged the first suspension, two years after his alleged FMLA request, and 10 months after the second suspension challenge. Not only was the time between events too long to establish a connection, but the manager who discharged him did not know that the employee had requested leave to care for his children. Accordingly, the employer’s motion for summary judgment was granted. � 2001, CCH INCORPORATED. All Rights Reserved.

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