The contours and bases for an employee’s intermittent leave under the Family and Medical Leave Act remain vexing for employers and challenging for their counsel.

In its Nov. 30 opinion in De Luca v. Trustees of the University of Pennsylvania , the U.S. District Court for the Eastern District of Pennsylvania granted summary judgment for Penn after it denied intermittent leave to an employee following her adoption of a newborn. The court also denied the employee’s claim that she had been retaliated against after taking 11 consecutive weeks of leave.

Intermittent Leave Requested

According to the opinion, Teresa De Luca was the patron services manager at the Annenberg Center at Penn. In February 2010, De Luca advised her supervisors that she would be adopting a baby who was expected to be born in March and that she needed to take intermittent leave under the FMLA. The baby was born and was found to be addicted to opiates. De Luca told her supervisors of the baby’s condition, but provided no other information about the baby — nor was any documentation requested.

De Luca took a full week of leave following the baby’s birth. When she returned to work, she learned that her request for intermittent leave had been denied because of the center’s schedule. After some back-and-forth between De Luca and the center over possible reduced-work schedules, De Luca advised Penn that she needed a continuous leave. She was granted 11 weeks of continuous FMLA leave, until July 26, according to the opinion.

New Expectations Upon Rreturn

Upon De Luca’s return to work, her supervisor provided her with a document detailing the center’s “Expectations for the Patron Services Manager.” After working for a few days under what she considered to be new and more onerous job responsibilities, De Luca resigned her position, stating that she felt like Penn was not trying to work with her to resolve her concerns, according to the opinion.

She subsequently brought suit against Penn, claiming that she had been denied her FMLA rights and also that she had been retaliated against for exercising those same rights. Penn moved for summary judgment at the close of discovery.

Sham Affidavit

The court first considered whether a key assertion in De Luca’s affidavit, submitted in opposition to the motion for summary judgment, was a “sham.” Specifically, after twice testifying that she requested FMLA leave because of the adoption, De Luca submitted an affidavit that she had requested intermittent leave to provide medical care to her newly adopted daughter.

The court noted that there was no corroborating evidence for this change and that, since she was the only person in possession of this information, she could not have been “understandably mistaken” as to why she requested leave. As such, that portion of the affidavit related to the reason she requested leave was not considered by the court.

Agreement for Intermittent Leave

In addressing De Luca’s FMLA interference claim, the court referred to the language of the act, which requires that an employer grant intermittent leave “when medically necessary.” The court cited the 2009 4th U.S. Circuit Court of Appeals case Dotson v. Pfizer in finding, however, that “employers may, at their option, require that employees take FMLA leave for … birth, adoption or foster care placement … in one block of up to 12 weeks rather than intermittently. The requirement that employer and employee must ‘agree’ on intermittent leave means that employers can refuse to allow this type of leave in birth, adoption and foster care placement cases.”

In this light, Penn was within its legal right to deny De Luca’s request for intermittent leave based on the adoption of her daughter. De Luca, however, claimed that she put the center on notice of her need for leave to care for her daughter when she told her supervisors that she had been born addicted to opiates. The court rejected this argument, finding that this unadorned statement, without any information as to follow-up care that may be necessary, did not provide adequate information to trigger Penn’s obligation to investigate further her asserted need for leave.

The court cited colorful language from the 7th Circuit in holding that “an employer’s investigatory obligation is not automatically triggered by an employee action that the employee subjectively conceives to be sufficient notice. This would be … an automatic trigger that ‘would place a substantial and largely wasted investigative burden on employers.’” (See the 7th Circuit’s 2004 opinion in Aubuchon v. Knauf Fiberglass GMBH. )

No Retaliation

The court also rejected De Luca’s claim that she had been retaliated against by the creation of the “job expectations” document. Although De Luca’s supervisor admitted that she had spoken to De Luca’s staff about her attendance while De Luca was on leave, and despite the fact that De Luca’s evaluation immediately preceding her leave was good and there was a “dearth of negative feedback” in her file, the court found there to be no genuine issue of fact that the document was a “culmination of ongoing conversations with plaintiff about her attendance issues.”

While De Luca claimed that the staff members who voiced concerns were “not pleased with” discipline that she had administered, the most this could establish was that the employees had an ulterior motive to report her — but this did not establish retaliation on any level.

While the case stands for the bright-line rule that employers are not required to provide FMLA intermittent leave for births or adoptions, it also emphasizes that not every morsel of medical information triggers an employer’s obligation to investigate the medical basis for a requested leave. Rather, the demand for leave must specify a qualifying reason under the act, which only then requires follow-up from the employer. 

Sid Steinberg is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII the FMLA and the ADA.