No FMLA Claim For Employee Who Mistakenly Thought He Was Fired

By Eric B. Meyer

Stop me if you’ve heard this one before:

  • Employee gets bad performance review.
  • Employee laments to HR about the pressures of work.
  • Employee emails a company vice president requesting that he stop propagating company “propaganda.”
  • Employee accuses another employee of “dismantling the Spanish Department.”
  • Employee attempts to mass email the company.

Oh, it gets better..after the jump.

Abandoning job and getting fired

So, where were we? Oh yes…

  • Company reaffirms that employee still has his job.
  • Employee calls the company’s Resource Center to request a single day of leave under the Family and Medical Leave Act (FMLA).
  • Company’s Resource Center cannot find employee in the system and suggest that he call his supervisor.
  • Employee does not call his supervisor.
  • Instead, employee goes to work and his building-access badge doesn’t work.
  • Employee erroneously believes that he is fired.
  • Employee demands that HR “cease and desist all communication” with him.
  • Employee no shows at work for three straight days.
  • Consistent with company policy, company writes to employee informing him that he resigned and abandoned his job.
  • Employee does not respond to the letter.
  • Company fires employee.
  • Employee sues for FMLA interference.

Why this is not FMLA interference

The FMLA provides employees with 12 work-weeks of leave during any 12-month period if they have a serious health condition that makes them unable to perform the functions of their position. Under the statute it is unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under the FMLA. That’s FMLA interference. Get it?

Article Continues Below

But no FMLA interference here, according to the Eighth U.S. Circuit Court of Appeals in St. Louis:

Viewing the facts in the light most favorable to Ballato, the series of events that led to his termination do not portray a smooth firing process. However, they also do not show interference with Ballato’s FMLA rights. Ballato’s unilateral determination that he was fired did not excuse him from his responsibility to return Comcast’s phone calls or otherwise confirm his employment status before he stopped showing up to work or calling in to request additional FMLA leave. Ballato had many opportunities to correct his misperception that he had been terminated before missing three consecutive work shifts. The record in this case does not support Ballato’s claim of interference against Comcast.”

The case is Ballato v. Comcast Corp.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (, which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.


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