Mondaq reports that Cynthia Dillon requested three weeks leave in 2002 to visit family in Jamaica. Dillon mentioned that she was going to visit her grandmother, but didn’t tell her employer that her grandmother was ill. Her employer denied her request based on work volume, but Dillon took the leave anyway.
According to the Mondaq account, Dillon called her employer after the first week and informed them of her grandmother’s illness. She did not return to work after the three-week leave. Her employer terminated her for absence without approval.
Dillon argued that her grandmother should qualify as an immediate family member for FMLA purposes since her grandmother raised her. The employer disagreed and Dillon sued for violation of FMLA.
The employer made a motion for summary judgment to dismiss the case, saying care for a grandmother was not covered under the FMLA. However the court decided that there were questions about whether Ms. Dillon’s grandmother acted as her parent to the level necessary for her to be considered a family member under the Act. Mondaq says the court stated that leave taken to care for grandparents can qualify if the grandparent acted “in loco parentis,” or on behalf of the parents.
The court was unclear if an employee would need to inform the employer prior to leave that the grandparent acted as a parent. The court questioned whether Dillon could use evidence that was not originally presented to her employer to support her position that the grandmother acted as her parent. Finding no case law preventing it from considering the later evidence, and saying that the evidence that the grandmother fed her, shared a bed with her and provided housing to her was the kind of evidence that a jury could either believe or discount in determining whether FMLA applied to the leave, the court left the decision up to a jury.
The case is Dillon v. Maryland-Nat’l Capital Park & Planning Comm’n, No. 04-0994, (D.Md. 2005).
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