When Does an FMLA Claim Accrue?

by John M. Fitzgerald

In Barrett v. Illinois Department of Corrections (opinion issued Oct. 20, 2015), the U.S. Court of Appeals for the Seventh Circuit decided an important issue of first impression within this circuit: When does an FMLA claim based upon a wrongful denial of family and medical leave accrue?  Deeming out-of-circuit authority to be “thinly reasoned” and thus “unhelpful,” the Seventh Circuit held that such a claim accrues when leave is wrongfully denied, not when the employee is eventually terminated under a system of progressive discipline for taking excessive unauthorized leave.  Thus, in Barrett, the plaintiff’s FMLA claim accrued when she was improperly denied leave — or, more specifically, when her absences were improperly deemed to be unauthorized — on various dates between 2003 and 2005, and not when she was terminated in 2010 for accumulating a certain prohibited number of unauthorized absences from work.  The plaintiff’s complaint was filed within two years of her termination but well over two years after the work absences which allegedly should have been permitted under the FMLA.  Her claim was therefore barred by the FMLA’s two-year limitations period.

In reaching this conclusion, the Seventh Circuit rejected an analogy to the “continuing violation” doctrine in the Title VII context, reasoning that “Title VII is fundamentally proscriptive,” while the FMLA is “fundamentally prescriptive in nature” (emphasis in original). 

The plaintiff argued, in essence, that it would be impractical to expect someone in her position to file a lawsuit over each and every improperly denied absence from work.  “Maybe so,” the appellate panel conceded.  But a private right of action is not the only remedy for alleged FMLA violations.  The FMLA, after all, “contains both judicial and administrative remedies in its enforcement edifice,” and someone in the plaintiff’s position could well have filed an administrative claim based upon an improper refusal to authorize an absence from work.  “This bifurcated enforcement structure suggests that Congress was aware that private litigation may not always be the most practical or desirable means of vindicating rights under the FMLA,” the appellate panel explained.  “Seen in this light, what [the plaintiff] portrays as a roadblock to litigating her claim is instead an intentional detour away from federal court and toward a federal agency.”  The panel also cited studies which indicated “that the overwhelming majority of FMLA claimants elect administrative resolution over private litigation.”