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Bryan E. Kuhn
Counselor at Law, P.C.
Business & Employment Law Attorney


Mr. McArdle is a former teacher in the public schools of the town of Dracut, Massachusetts who began working there in 1997. In 2007, he entered divorce proceedings with his wife and began to drink excessively. Mr. McArdle suffered from depression, anxiety, his home was foreclosed on, and he filed for a personal bankruptcy. Dealing with these personal crises, Mr. McArdle began to miss work. He went to work only ten (10) of twenty-one (21) days in September and did not appear at all in October, November, or December of 2008. His record improved following winter break but in total, he appeared at his job for only eighty-two (82) days in the 2008-2009 school year. These absences exhausted the fifteen (15) days of sick leave and two (2) personal days to which he was entitled. He also borrowed the fifteen (15) days from his 2009-2010 year and deducted fifty-two day for which he did not work and was not paid.

Throughout the year, Mr. McArdle provided cursory explanations for his absences supplying his principal with notes that he had a “medical condition” and was unable to work for “medical reasons.” On September 1, 2009, Mr. McArdle did not appear for the first day of school and stated that he wanted to apply for leave under the Family Medical Leave Act (“FMLA”). He received the necessary paperwork to begin FMLA and was told he needed to notify the superintendent in writing of any request for FMLA leave, as well as return a completed medical certification. Mr. McArdle stated that he believed the request for paperwork to be “optional” and did not return any documentation regarding his condition.

On September 28, 2009, Mr. McArdle was terminated for abandoning his position. Mr. McArdle filed a lawsuit in 2011, alleging that the school violated his rights under FMLA as well as state tort law claims. After discovery, the defendants successfully moved for summary judgment on all the claims. Mr. McArdle appealed the decision to the United States Court of Appeals for the First Circuit.

The FMLA is a federal law enacted in 1993 and is enforced by the Department of Labor. The Act applies to private employers with fifty (50) or more employees, state and local government employers, as well as most federal employers. The Law guarantees an eligible employee the right to take twelve (12) weeks of unpaid leave because of, among other things, a serious medical condition that renders the employee unable to do his job. 29 U.S.C. § 2612. The Act further makes it unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided by the FMLA. 29 U.S.C. § 2615(a)(1). Mr. McArdle claimed that the school violated the FMLA by interfering with his attempt to seek permission to take FMLA leave and by terminating him because he attempted to avail himself of the protections afforded under FMLA.

However, to apply for FMLA and protections under the FMLA laws; an employee must first be eligible for FMLA by having at least 1,250 hours of service with the employer during the previous 12-month period. 29 § 2611(2)(A). The case law supports the presumption that these hours must be actually worked. The Court found that given all his absences, McArdle could prove that he worked 615 hours in the previous year. Admittedly there were hours he worked at home in preparation for those hours spent teaching but the Court held it was entirely implausible he could have worked enough hours to make up the difference in required hours.

As such, the Court of Appeals upheld the granting of summary judgment for the school on Mr. McArdle’s claims of a violation of his rights under the FMLA as he was not currently eligible for leave. If you have a question about your eligibility for FMLA or a possible violation of your FMLA rights, contact a lawyer to discuss your legal rights.

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