Dyer v. Ventra Sandusky, LLC, No. 18-3802 (6th Cir. 2019)
Annotate this CaseDyer, a Ventra employee, has migraine headaches that often prevent him from working. Ventra’s collective bargaining agreement's attendance policy does not require the employee to justify an absence; points are assessed for absences, depending on whether the employee calls in to report the absence and whether the employee is absent for his entire shift or only part of it. Once an employee accumulates 11 or more points, he is terminated. Certain absences, including leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. 2615(a)(1), are expressly excluded from the point-accumulation system. Employees who have perfect attendance for 30 days will have their total points reduced by one point. Taking leave for vacations, bereavement, jury duty, military duty, union leave and holidays keeps the 30-day clock running. The point reduction schedule did not count FMLA and other unpaid leave (such as disability) as days “worked” toward 30-day perfect attendance. Beginning in 2013, Dyer used intermittent FMLA leave. Dyer did not have any points for using his FMLA leave. Ventra terminated Dyer in 2016, for accumulating 12 points. The district court granted Ventra summary judgment. The Sixth Circuit reversed. Resetting Dyer’s perfect-attendance clock every time he took FMLA leave effectively denied him the flexibility of the no-fault attendance policy that employees not taking FMLA leave enjoyed. Dyer's ability to remain employed hinged on his not taking FMLA leave. FMLA leave is treated less favorably than other equivalent leave statuses.
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