Do the Family and Medical Leave Act (FMLA) protect a request for FMLA leave by an employee who is not yet eligible?  This question recently was considered and answered in the affirmative by the Court of Appeals for the Eleventh Circuit, which has jurisdiction over federal cases originating in Alabama, Florida and Georgia.  The facts in the case, Pereda v. Brookdale Senior Living Communities, Inc., were quite simple. The plaintiff, Ms. Pereda, requested FMLA leave in June 2009, which was to be taken after the birth of her child in or around late November of 2009.  Soon after advising her employer of the pregnancy, Ms. Pereda allegedly experienced offensive and harassing conduct from her employer and, after being put on a performance improvement plan, was terminated in September of 2009.  It was undisputed that at the time she requested leave and on the date of her termination, Ms. Pereda was not yet eligible for FMLA protection because she had not worked the requisite time period and had not yet experienced the triggering event of the birth of her child.  It was equally undisputed that had she not been terminated, Ms. Pereda would have been entitled to FMLA protection by the time she gave birth and began her requested leave. Under the FMLA, employees may assert two types of claims – “interference,” where an employer allegedly denies or interferes with an employee’s rights under the FMLA; and “retaliation,” where an employer allegedly discriminates against an employee for engaging in FMLA protected activity.  Ms. Pereda asserted each of these claims against her employer, and the court recognized the legitimacy of both of them in its decision. Please see full article below for more information.