Trial Talk June 2014

59 Years on the Side of People
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TRIALTALKJune/July 2014 Volume 63 Issue 4

Colorado Trial Lawyers Association Trial Talk June/July 2014 15
Most employment lawyers are undoubtedly familiar
with the general purposes and workings of the Family
and Medical Leave Act of 1993 ("FMLA"), and the poten -
tial legal liability an employer could face for violating
the statute.1
When advising clients regarding potential FMLA claims,
however, it is critical for employment attorneys to have more
than a basic understanding of the two distinct theories of
FMLA liability a claim might arise under, because the bur-
dens of proof differ considerably for each type of claim and
the timing of the adverse action influences when one or the
other (or both) might apply.2
Experienced and novice employment attorneys alike
should also be aware of several important developments
in the FMLA case law in recent years. Although many of
these cases are unpublished, and thus, not precedential, they
are important to the extent that they are paving the way
for novel FMLA claims that may not previously have
appeared cognizable.
This article provides an overview of the two types of
available FMLA claims and explores several important
developments in Tenth Circuit case law in recent years
that could bear on the Colorado employment lawyer's
evaluation of potential FMLA claims.
Overview of the FMLA3
Congress enacted the FMLA in 1993 to provide eligible
employees unpaid time off from work for serious health
conditions, to care for a parent, child, or spouse with a serious
health condition or for the birth and care of a child.4
The
leave can be either continuous, or, where warranted as a
matter of medical necessity, intermittent or on a reduced
leave schedule, up to the twelve workweek maximum.5
The
FMLA protects employees by requiring covered employers
to reinstate an employee into his or her job or a substantially
similar position at the conclusion of FMLA protected leave,
with limited exceptions.6
To Whom Does the FMLA Apply?
The FMLA applies to most public employers and to those
private employers with at least fifty or more employees
employed for at least twenty workweeks in the current or
preceding calendar year in an employing unit within a 75
mile radius.7
Employees working for a covered employer
are eligible for FMLA leave only after they have worked
for the employer for twelve months or at least 1,250 hours,
are employed at a worksite where fifty or more employees
are employed within a seventy five mile radius of that work-
site, and only after demonstrating entitlement to family or
medical leave with evidence of some qualifying condition
or circumstance.8
Although the Court of Appeals for the Tenth Circuit has
not yet addressed the issue, several other circuits have
applied an equitable estoppel theory to hold that the FMLA
can also apply to an employee that does not meet the eligi-
bility criteria for FMLA leave, but his or her employer
mistakenly represented that he or she was eligible for such
leave, and later denies the employee FMLA benefits.9
The
Court of Appeals for the Second Circuit has also applied
the doctrine of equitable estoppel in circumstances where
the employee did not have enough hours to be eligible for
FMLA leave, but the employer did not tell the employee of
his or her ineligibility when doing so would have allowed the
employee to work additional hours and become eligible.10
Jones | EMPLOYMENT LAW
Recent Developments in Family and
Medical Leave Act Claims
By Kimberly J. Jones, Esq.

When Does Potential
Liability Arise?
In the Tenth Circuit, the FMLA trig-
gers an employer’s duties the moment
its employee provides enough informa-
tion to put it on notice that he or she
may be in need of FMLA leave.11
Once
an employer's FMLA obligations arise,
so too does the potential for its legal
liability. Such liability can arise under
one of two distinct legal claims.
FMLA
Interference/Entitlement Claims
Under the FMLA, it is unlawful for
a covered employer to “interfere with,
restrain, or deny the exercise of or the
attempt to exercise, any right provided
under [the FMLA].”12
An employer's
violation of this provision of the
FMLA gives rise to a FMLA
"interference/entitlement" claim.13
FMLA Interference May Be Easiest
to Prove and Should Always
Be Considered
The FMLA interference claim is
unique in that the familiar McDonnell
Douglas burden-shifting framework14
applicable in other employment dis-
crimination and retaliation scenarios
does not apply.15
This means that the
employer's intent (or lack thereof) to
interfere with the employee's FMLA
rights is irrelevant.16
The interference theory is "derived
from the FMLA's creation of substan -
tive rights."17
Accordingly, an employer
may expose itself to a potential FMLA
interference/entitlement claim by:
1) preventing its employee from taking
the full twelve weeks of leave, 2) deny -
ing its employee reinstatement following
such leave or 3) denying its employee
initial permission to take leave.18
Less
obviously, in certain circumstances, a
FMLA interference claim may be cog -
nizable even though an employee was
permitted to take FMLA leave and was
restored to his or her position follow-
ing that leave.19
A prima facie case of FMLA inter-
ference is established where an employee
can demonstrate that: 1) he or she was
entitled to FMLA leave, 2) some adverse
action by the employer interfered with
his or her right to take FMLA leave,
and 3) this adverse action was related
to the exercise or attempted exercise of
his or her FMLA rights.20
The employee bears the burden of
proof on only the first two elements of
his or her prima facie showing on a
FMLA interference claim.21
Where the
employee successfully does so by estab -
lishing his or her entitlement to a right
provided for under the FMLA and some
sort of employer interference with it, the
burden of proof automatically shifts to
the employer on the third element.22
Although this proof structure makes
proving unlawful FMLA interference
arguably easier for employees than can
be said for other claims that do require
proof of employer intent, employers are
not strictly liable for FMLA interference
anytime an employee can establish the
first two elements of an interference
claim.23
Rather, as the Tenth Circuit
has made clear, an employee who
requests or is on FMLA leave has "no
greater protection against his or her
employment being terminated for
reasons not related to his or her FMLA
request than he or she did before sub -
mitting the request."24
In other words,
the employer can defeat an employee's
FMLA interference claim by demon -
strating that it would have fired the
employee regardless of his or her
exercise or attempted exercise of
FMLA rights.25
Several recent decisions from Tenth
Circuit courts illustrate why it is so
critical to understand how this unique
proof structure functions as a practical
matter when evaluating any potential
FMLA interference claim.
Evidence of Close Temporal
Proximity Can Establish
Unlawful Interference
First, although evidence of close
proximity in time between the employee's
exercise or attempted exercise of his or
her FMLA rights and the employer's
adverse action is often insufficient
without more, to establish an employer's
intent to retaliate via the McDonnell
Douglas burden shifting framework for
purposes of many employment retali-
ation claims,26
one recent Tenth Circuit
decision suggests that such evidence
may be enough, standing alone, to
prove unlawful FMLA interference.27
In that case, the employer made the
decision to fire an employee just two
days after he requested FMLA leave.28
Although the employee's FMLA inter-
ference claim ultimately failed because
the employer proffered undisputed
evidence that it would have terminated
the employee for performance issues
regardless of his request for leave, the
court recognized that the exceedingly
close timing between his request for
leave and his termination could be
sufficient, without more, to establish
unlawful FMLA interference.29
As the court explained, this possibi-
lity exists because a FMLAinterference
claim does not require proof of the
employer's intent to interfere.30
Instead,
it only requires a showing that the inter-
ference was in some way related to the
exercise or attempted exercise of a right
protected by the FMLA.31
Accordingly,
employment lawyers should remain
cognizant when evaluating potential
FMLA liability that evidence of very
close timing between the employee's
exercise of his or her FMLA right and
the employer's adverse action can
provide the requisite causal nexus to
establish unlawful interference.
16 June/July 2014 Trial Talk Colorado Trial Lawyers Association
EMPLOYMENT LAW | Jones

Employer's Good Faith Belief
about Employee's Eligibility
Is Immaterial
Second, the lack of any required
showing of employer intent to prove
interference could mean that an employ -
er will be liable for unlawful FMLA
interference even for a decision to
deny an employee's request for FMLA
leave that he or she made in good faith.
This concept recently played itself
out in an unpublished opinion out of
the District of Colorado in which the
court denied the employer's summary
judgment motion on a FMLA inter-
ference claim.32
There, the employee
missed work due to injuries she suffered
in an automobile accident.33
Upon her
return to work, the employee's super-
visor told her to apply for FMLA leave
to cover her missed shift.34
The employ-
ee did so, and applied for FMLA leave
to cover anticipated future absences for
the surgery she required for her injuries.35
Upon review of her application, the
employer concluded that the employee's
injuries did not qualify as a "serious
health condition" within the meaning
of the FMLA, and therefore the FMLA
did not protect her absences.36
The em -
ployer subsequently fired the employee
for violation of its absenteeism policy.37
The court held that there were dis-
puted issues of material fact regarding
whether or not the employee's injuries
constituted a "serious health condition"
as defined by the FMLA.38
Accordingly,
even though the employer believed in
good faith that the employee was not
entitled to FMLA leave, that good faith
belief did not insulate it from liability on
the employee's FMLAinterference claim.39
Termination during FMLA
Leave May Not Constitute
Unlawful Interference
These cases strongly suggest that
employers proceed with caution when
making employment decisions regarding
any employee that has requested or
taken FMLA leave. However, not
every employment decision -- even
those involving an employer's termi-
nation of an employee during his or
her FMLA leave -- will subject an
employer to potential FMLA inter-
ference liability.
For example, an employee terminated
while on FMLA leave may not have a
FMLA interference claim where the
employer can demonstrate that the
employee failed to comply with its
policies during that leave.40
In a recent
unpublished decision, the Court of
Appeals for the Tenth Circuit upheld
the lower court's grant of summary judg -
ment to the employer on the employee's
FMLA interference claim.41
There, the
employee was fired while he was on
FMLA leave.42
Nevertheless, the lower
court dismissed his claim based on
uncontroverted evidence that the
employee failed to comply with the
employer's attendance and notice-of-
absence policies while on approved
FMLA leave.43
The appellate court affirmed, reason-
ing that an employer's termination of
an employee for non-compliance with
absence reporting policies generally
does not violate the FMLA, even if the
absences that the employee failed to
report were FMLA protected absences.44
Importantly, however, where the em -
ployee can demonstrate that, inter alia,
the employer applied such policies
discriminatorily to only employees on
FMLA leave, the employer may well
be liable for unlawful interference.45
Further, where an employer can
establish that it made the decision to
terminate the employee prior to the
employee's request for FMLA leave,
the employer will not be liable for
FMLA interference even if the actual
termination did not occur until after
the employee's FMLA leave com-
menced.46
The Tenth Circuit recently
addressed this situation in the context
of a reduction in force.47
There, the
employer established that it had reached
the decision to terminate an employee
as part of a reduction in force prior to
the employee's request for FMLA
leave.48
Thus, even though the employee
received notice of his termination while
he was on FMLA leave, the employer's
evidence that the decision to
terminate him pre-dated his request
for leave was sufficient to defeat the
employee's interference claim.49
Employer Disincentives for
Exercising FMLA Rights Can
Qualify as Interference
An employer's decision to grant an
employee's request for FMLA leave
and its reinstatement of that employee
following his or her leave might initi-
ally appear to foreclose the possibility
of any FMLA interference liability.
This is not so. Courts in the Tenth
Circuit have recognized that liability
might exist for employers even post-
reinstatement in circumstances where
the employee can establish that he or
she was somehow discouraged or
disincentivized from exercising his or
her FMLA rights.50
One District of Colorado court re-
cently recognized the concept that
unlawful interference can include an
employer's disincentives to employees
that utilize FMLA leave.51
There, al-
though the employee was ultimately
permitted to take FMLA leave, the
employer attempted to remove one of
her large commission-based accounts
shortly before her leave began, and
gave her a written warning for alleged
performance problems just days after
she notified her employer of her need
for leave.52
Relying on an unpublished
Tenth Circuit decision and Department
of Labor regulations interpreting

FMLA interference, the court held that
by attaching "such negative consequences
to [the employee's] invocation of her
FMLA leave," the employer created a
"powerful disincentive" to her to take
that leave.53
This was sufficient evi-
dence of interference with the employee's
FMLA rights to permit her claim to
proceed to a jury.54
In summary, the FMLA interference
claim is unique for its proof structure
and the lack of any required showing
of employer intent for liability to attach.
In some ways, this benefits employees
seeking to redress alleged interference
with their FMLA rights because the
claim can arguably be more easily
established than it might be were the
employee required to prove intent.
However, employers are not strictly
liable anytime they make an employ-
ment decision related to an employee
that has exercised his or her FMLA
rights. They are nevertheless well
advised to carefully evaluate whether
potential FMLA interference liability
might exist before doing so.
FMLA
Retaliation/Discrimination Claims
Beyond interference with an employ-
ee's substantive FMLArights, the FMLA
also prohibits an employer's discrimi-
nation or retaliation against an employee
for having exercised or attempted to
exercise those rights.55
Liability for
unlawful FMLA retaliation can arise
in situations where an employee
engages in protected activity, such as
by taking FMLA leave, and later
suffers some adverse employment
action in retaliation for having done
so.56
This type of FMLA claim is a
"retaliation/discrimination" claim.
FMLA Retaliation Claims Require
Proof of Employer Intent to Retaliate
Unlike interference/entitlement
claims, FMLA retaliation/discrimination
claims require proof of the employer's
retaliatory motivation,57
and they are
subject to the McDonnell Douglas
burden-shifting framework under
which the ultimate burden of proof
rests with the employee.58
Under this framework, the employee
must first establish a prima facie case
of retaliation.59
To do so, an employee
must show that: 1) he or she engaged
in protected activity, 2) his or her em-
ployer took an action that a reasonable
employee would have found materially
adverse, and 3) there is a causal con-
nection between the protected activity
and the adverse action.60
If the employee
successfully states a prima facie case
of retaliation, the burden then shifts
to the employer to offer a legitimate,
non-retaliatory reason for the adverse
employment action.61
The employee
then bears the ultimate burden of
demonstrating that the employer's
proffered reason is pretextual.62
Because an employer's retaliatory
intent is the crux of a FMLA retaliation
claim, evidence of close temporal
proximity is generally insufficient,
without more, to prove unlawful re-
taliation.63
Further, although irrelevant
for purposes of a FMLA interference
claim, an employer's good faith belief
about an employee's ineligibility for
FMLA leave could prove fatal to a
FMLA retaliation claim.64
Employees That Never Actually
Take Leave Could Have FMLA
Retaliation Claims
Although this proof structure makes
FMLA retaliation claims more diffi -
cult for employees to prove, a handful
of recent unpublished decisions in the
Tenth Circuit suggest that claims brought
under a FMLA retaliation theory might
presently extend protection to more
employees than those brought under
its interference counterpart.
For example, until recently, whether
an employee actually needed to take
FMLA leave in order to engage in
"protected activity" for purposes of his
or her FMLA retaliation claim has re-
mained an open question.65
In a recent
unpublished decision, however, the
Tenth Circuit held that "giving an
employer notice of intent to take FMLA
leave, at least where the employee
qualifies for that leave, is protected
activity for purposes of a FMLA
retaliation claim."66
In so doing, the court drew upon the
analysis of several of its sister circuits
that have reached the same conclusion.67
All of these courts have recognized
that, because the FMLA imposes a
requirement on an employee to provide
his or her employer "not less than 30
days' notice" of his or her intent to take
FMLA leave when the need for such
leave is foreseeable, giving such notice
must be protected activity.68
As the
Tenth Circuit explained, were such
activity unprotected for purposes of a
FMLA retaliation claim, employers
might attempt to avoid liability for
FMLA retaliation by terminating the
employee following his or her notice
of the intent to take FMLA leave but
prior to the commencement of such
leave.69
It is plain from the court's
decision that such a result cannot (and
will not) be countenanced as a matter
of law or public policy.70
Even Ineligible Employees Could
Have FMLA Retaliation Claims
The Court of Appeals for the Tenth
Circuit was careful to tailor its holding
narrowly to apply to only those em-
ployees that qualify for FMLA leave at
the time notice is given.71
The court
declined to decide whether employees
not yet eligible for FMLA leave might
also engage in protected activity by
giving advance notice of post-eligibility
FMLA leave.72
However, several

recent decisions out of Tenth Circuit
courts and elsewhere suggest that even
an ineligible employee could have a
viable argument for a FMLA retalia-
tion claim where the employer takes
some adverse action against him or
her following his or her pre-eligibility
notification of the intent to take FMLA
leave post-eligibility.
First, the Court of Appeals for the
Eleventh Circuit recently held that the
FMLA protects even employees that
are ineligible for FMLA leave at the
time they give notice of their intent to
take such leave are protected from both
unlawful interference and retaliation for
having done so.73
The court reasoned
that, "because the FMLA requires notice
in advance of future leave, employees
are protected from interference prior to
the occurrence of a triggering event,
such as the birth of a child" or the com-
pletion of the requisite 1,250 hours of
employment during a 12-month period.74
To hold otherwise, the court recog-
nized, would mean that the "advance
notice requirement becomes a trap for
newer employees and extends to em-
ployers a significant exemption from
liability," which is inconsistent with
the purpose of the FMLA.75
The
court's opinion bears significance for
Colorado employment lawyers because
the Court of Appeals for the Tenth Cir-
cuit relied on it in holding that, at least
with respect to qualifying employees,
advance notice of anticipated FMLA
leave is protected activity for purposes
of a FMLA retaliation claim.76
Further, in another recent unpublished
decision, the Tenth Circuit recognized
(albeit in dicta) that not every employee
pursuing a FMLA retaliation claim
"must affirmatively establish her statu -
tory eligibility for leave."77
By way of
example, the court explained, "an
employee fired immediately upon
requesting protected leave may have
a valid retaliation cause of action,
regardless of her ultimate eligibility."78
Although the facts there did not sup-
port a FMLA retaliation claim under
the court's hypothetical fact pattern, its
articulation of this concept suggests
that the right set of facts could support
a claim.
Finally, one federal district court in
Oklahoma has explicitly held that
ineligible employees are protected
from interference and retaliation in vio-
lation of the FMLA when they attempt
to exercise their FMLA rights.79
That
court employed the same reasoning
and analysis subsequently relied on by
both the Tenth and Eleventh Circuits
in the earlier-described decisions.80
As the court explained, whether an
employee was "ultimately entitled to
leave is immaterial to the issue of
whether his employer interfered or
retaliated against him for the 'attempt to
exercise' his rights under the [FMLA]."81
Read together, these decisions sug-
gest that even pre-eligible or ineligible
employees might have colorable FMLA
retaliation claims in the Tenth Circuit
under the right set of circumstances.
Thus, although the ultimate burden
of proof of unlawful FMLA retaliation
rests with the employee, which can
make these claims more difficult to
prove than a FMLA interference
claim, recent developments in the case
law appear to be expanding the pro-
tections afforded to employees under
the FMLA anti-retaliation provision.
Conclusion
Although the FMLA has been in
effect for more than twenty years,
novel theories about when and how
liability might arise continue to develop
in recent case law, with important im-
plications for employers and employees
alike. As a practical matter, when the
facts support it, employment lawyers
should consider bringing both types of
FMLA claims. As the law continues
to evolve, recognition of these novel
issues together with a solid under-
standing of the distinctions between
the two available theories of FMLA
liability will serve employment lawyers
and their clients well. LLL
Kimberly Jones is an Attorney with
King & Greisen, LLP in Denver, Colorado.
Her practice focuses on civil rights and
plaintiff-side employment litigation. Ms.
Jones can be reached at (303) 298-9878
or jones@kinggreisen.com.
Endnotes:
1
29 U.S.C. §§ 2601, et seq.
2
Campbell v. Gambro Healthcare, Inc.,
478 F.3d 1282, 1287 (10th Cir. 2007).
3
Because this article does not cover in
detail which employers and employees
the FMLA might apply to or the specific
rights and obligations of employers and
employees under the FMLA, this article
should be read in conjunction with the
statute, 29 U.S.C. §§ 2601, et seq., the
Dept. of Labor regulations implementing
the statute (amended in 2013), 29 C.F.R.
§§ 825.100, et seq., and other sources of
information regarding the basic elements
of the FMLA, e.g., Thomas J. Arckey, A
Primer on the Family and Medical
Leave Act: Recent and Significant
Changes to the Regulations under the
FMLA, TRIAL TALK, (June/July, 2011).
4
29 U.S.C. § 2612(a).
5
29 C.F.R. §§ 825.200 and 202.
6
29 U.S.C. § 2614(a).
7
29 C.F.R. § 825.104 and 105.
8
29 C.F.R. § 825.110; 29 U.S.C. §
2612(a)(1).
9
See, e.g., Minard v. ITC Deltacom
Commc’n, Inc., 447 F.3d 352 (5th Cir.
2006); Duty v. Norton-Alcoa Proppants,
293 F.3d 481 (8th Cir. 2002); see also
Waters v. AXL Charter Sch., No. 12-cv-
01384-LTB, 2013 U.S. Dist. LEXIS
31643, at *1, *18-*19 (D. Colo. Mar. 7,
2013) (unpublished) (discussing applica-
tion of equitable estoppel arguments in
other circuits and noting that Tenth

Circuit has not addressed whether the
doctrine applies to FMLA actions).
10
Kosakow v. New Rochelle Radiology
Assocs., P.C., 274 F.3d 706 (2d Cir. 2001).
11
Tate v. Farmland Indus., Inc., 268 F.3d
989, 997 (10th Cir. 2001).
12
29 U.S.C. § 2615(a)(1).
13
Smith v. Diffee Ford-Lincoln-Mercury,
Inc., 298 F.3d 955, 960 (10th Cir. 2002).
14
McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-04 (1973).
15
478 F.3d 1282, 1287 (10th Cir. 2007).
16
Id.
17
Id.
18
Id.
19
Martin v. Canon Bus. Solutions, Inc., No.
11-cv-02565-WJM-KMT, 2013 U.S.
Dist. LEXIS 129008, at *1, *9-*10 (D.
Colo. Sept. 10, 2013) (unpublished).
20
Metzler v. Fed. Home Loan Bank of Topeka,
464 F.3d 1164, 1180 (10th Cir. 2006).
21
Id.
22
Id.
23
Smith v. Diffee Ford-Lincoln-Mercury, Inc.,
298 F.3d 955, 960-61 (10th Cir. 2002).
24
Id. at 960.
25
Metzler, 464 F.3d at 1180.
26
Id.
27
Brown v. ScriptPro, LLC, 700 F.3d 1222,
1227 (10th Cir. 2012).
28
Id.
29
Id.
30
Id.
31
Id. at 1226-27.
32
Crowell v. Denver Health & Hosp. Auth.,
No. 12-cv-00019-LTB-MEH, 2013 U.S.
Dist. LEXIS 28322, at *1, *9-13 (D.
Colo. Mar. 1, 2013) (unpublished).
33
Id. at *3.
34
Id.
35
Id. at *9.
36
Id. at *4-*5.
37
Id. at *5.
38
Id. at *10-*11.
39
Id. at *11-*13.
40
See, e.g., Barnes v. Spirit AeroSystems, Inc.,
No. 13-3043, 2013 U.S.App. LEXIS 20326,
at **1, **3 (10th Cir. Oct. 4, 2013)
(unpublished) (citing Twigg v. Hawker
Beechcraft Corp., 659 F.3d 987, 1008-09
(10th Cir. 2011)).
41
Barnes, 2013 U.S. App. at **3.
42
Id.
43
Id.
44
Id. (internal citation omitted); see also
Robert v. Bd. of Cnty. Comm'rs, 691 F.3d
1211, 1219 (10th Cir. 2012) (employee's
failure to comply with employer policies
fatal to FMLA retaliation claim).
45
Twigg, 659 F.3d at 1009 n13.
46
Sabourin v. Univ. of Utah, 676 F.3d 950,
958-59 (10th Cir. 2012).
47
Id. at 959.
48
Id.
49
Id.
50
Martin v. Canon Bus. Solutions, Inc., No.
11-cv-02565-WJM-KMT, 2013 U.S.
Dist. LEXIS 129008, at *1, *9-*12 (D.
Colo. Sept. 10, 2013) (unpublished).
51
Id. at *11-*12.
52
Id.
53
Id. at *9-*12 (citing 29 C.F.R. § 825.220(b);
Mardis v. Cent. Nat'l Bank & Trust of
Enid, No. 98-6056, 1999 U.S. App. LEXIS
7261, at *1, *2 (10th Cir. April 15, 1999)
(unpublished)).
54
Martin, 2013 U.S. Dist. at *11-*12.
55
29 U.S.C. § 2615(a)(2); see also 29 C.F.R.
§ 825.220(c).
56
478 F.3d 1282, 1287-88 (10th Cir. 2007).
57
Id. at 1287.
58
Metzler v. Fed. Home Loan Bank of
Topeka, 464 F.3d 1164, 1170 (10th Cir.
2006) (citing McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973).
59
Metzler, 464 F.3d at 1170.
60
Id. at 1171.
61
Id. at 1170.
62
Id.
63
E.g., Borwick v. T-Mobile West Corp.,
No. 13-1023, 2013 U.S. App. LEXIS
16301, at **1, **6 (10th Cir. Aug. 7,
2013) (unpublished).
64
E.g., Crowell v. Denver Health & Hosp.
Auth., No. 12-cv-00019-LTB-MEH,
2013 U.S. Dist. LEXIS 28322, at *1,
*14-*15 (D. Colo. Mar. 1, 2013)
(unpublished).
65
See Campbell v. Gambro Healthcare,
Inc., 478 F.3d 1282, 1287-88 (10th Cir.
2007) (retaliation claims arise after an
employee successfully takes FMLA leave
and is restored to her or her position); see
also Wilkins v. Packerware Corp., No.
06-3400, 2008 U.S. App. LEXIS 506, at
**1, **11 (10th Cir. Jan. 7, 2008) (unpub-
lished) (whether the "lawful taking of
FMLA leave is a prerequisite to a retali -
ation claim" remains an open question).
66
Wehrley v. Am. Fam. Mut. Ins. Co., 513
Fed. Appx. 733, *742; 2013 U.S. App.
LEXIS 5603, **23 (10th Cir. Mar., 18, 2013).
67
Id.
68
Id. (citation omitted).
69
Id.
70
Id.
71
Id.
72
Id.
73
Pereda v. Brookdale Senior Living Cmtys.,
Inc., 666 F.3d 1269 (11th Cir. 2012); see
also McArdle v. Town of Dracut, 732
F.3d 29, 36 (1st Cir. 2013) (employees
that are ineligible for FMLA leave may
still be able to assert a FMLA retaliation
claim).
74
Pereda, 666 F.3d at 1274.
75
Id.
76
Wehrley, 513 Fed. Appx. at *742, 2013
U.S. App. LEXIS at **22-23.
77
Smith v. Wynne, No. 11-6195, 2012 U.S.
App. LEXIS 17471, at **1, **13 n4
(10th Cir. Aug. 20, 2012).
78
Id.
79
Potts v. Franklin Electric Co., No. CIV
05-433-JHP, 2006 U.S. Dist. LEXIS
60781, at *1, *7-*8 (D. Okla. Aug. 24,
2006) (unpublished).
80
Id.
81
Id.

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