First Circuit Affirms Ruling that Employee Who Worked Only 615 Hours in 12 Months Is Not Eligible for FMLA Leave

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

On October 9, 2013, the First Circuit Court of Appeals affirmed summary judgment in favor of an employer on claims brought under the Family and Medical Leave Act (FMLA) by a former employee. The court held that the employee was not eligible to take FMLA leave because he had not worked 1,250 hours in the previous year, that he could not establish his employer’s handling of his FMLA application caused him any harm, and that he was not fired for requesting FMLA leave but for his indefinite absence. McArdle v. Town of Dracut, No. 13-1044 (1st Cir. October 9, 2013).   

Raymond McArdle had been a middle school English teacher in the Dracut school district since 1997. Beginning in 2007, he experienced personal issues that caused him to miss numerous school days during the 2008-2009 school year.

On the first day of the 2009-2010 school year, McArdle did not report to work and he informed the principal that he made the decision it was not in anyone’s best interest for him to return to the school. At the same time, he stated that he wanted to apply for FMLA leave. The superintendent’s office then sent him paperwork, including a form to be completed by his doctor and a statement that he had to notify the superintendent in writing of any request for FMLA leave. McArdle did not send the superintendent a written notice or a completed form from his physician.

On September 28, 2009, the principal sent McArdle a letter, terminating his employment for abandoning his position. In response, McArdle requested FMLA leave in writing for the first time and stated that the school district was required to give him notice of intent to terminate his employment before firing him. A few days later, the principal sent McArdle a second letter, notifying him of the school district’s intent to terminate him and allowing him 10 days to respond. Nine days later, McArdle resigned his position so as to avoid termination.

McArdle sued the school district, its former superintendent, its new superintendent, and the school’s principal, alleging violations of the FMLA. McArdle—in somewhat novel fashion—claimed that the school district violated the FMLA by interfering with his attempt to seek permission to take FMLA leave and by firing him because he attempted to avail himself of the protections of the FMLA for the leave he took (as opposed to the traditional arguments that the employer refused to grant FMLA leave or fired the employee for taking FMLA leave).

FMLA Eligibility

First addressing Mr. McArdle’s eligibility to take FMLA leave, the First Circuit determined that McArdle had worked only 82 days in the 12 months prior to the start of his leave and, thus, that he was ineligible for FMLA leave. In reaching that conclusion, the court rejected McArdle’s argument that he should be considered to have worked on days for which he had been paid without working (such as holidays and personal days). The court determined that even ifhe had worked additional days or hours from home, “[t]he gap between 615 hours and 1250 hours [as required to be eligible for FMLA leave] is so large that it is entirely implausible on this record that McArdle worked anywhere close to 1250 hours.”  The court ruled, therefore, that McArdle did not work enough hours during the year preceding his request for FMLA leave to be eligible for leave.

Interference With FMLA Rights

The court next considered whether the school district interfered with McArdle’s FMLA rights by not notifying him of his eligibility to take FMLA leave. The First Circuit declined to rule whether the school district was obligated to inform him that he was ineligible in the first place and instead decided that even if there were a violation of notice requirements, McArdle offered no evidence or explanation of any loss or harm suffered. In other words, because McArdle was ineligible for FMLA leave and had offered no evidence that he would have returned to work or secured some other form of authorized leave, “nothing was lost, nor was any harm suffered, by reason of the alleged violations” in not providing any notice, if required.


Further, the First Circuit ruled that the school district did not unlawfully retaliate against McArdle. The court noted the unusual nature of the McArdle’s argument that he was fired for asking for FMLA leave, not for taking leave (as he was ineligible and could not have). The court stated that “it is not clear that one not entitled to take FMLA leave ‘avails himself of a protected right’ when requesting to take such leave.” The court explicitly left open the possibility, however, that an employee who was ineligible for FMLA leave could potentially have a retaliation claim, as an employee may not know he was ineligible until attempting to exercise his right. In this case, the court concluded on review of the summary judgment record that the “only reasonable reading . . . is that McArdle was not fired for asking to take FMLA leave. Rather, he was fired because the town concluded that his renewed and indefinite absence, without advance notice, allowed it to fire him.” The First Circuit therefore ruled that Mr. McArdle’s absence from work was “fully sufficient to cause his termination,” and that “no reasonable factfinder could find that the request for leave played any role in causing the town to fire [him].”

Key Takeaways

The First Circuit’s decision in this case is a reminder of the requirement that an employee must work at least 1,250 hours with the employer during the previous 12-month period to be eligible for FMLA leave. However, the court stopped short of determining that an employee ineligible for FMLA for that reason could never have a claim for wrongful termination in violation of the law. The court also did not decide whether the employer could be required by the FMLA to notify an employee that he or she is ineligible for FMLA leave. Nevertheless, the court upheld a summary judgment ruling in favor of an employer based on the facts presented.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.