FMLA Claimant Doesn't Fare Well In State Court
by Michael Fox
It will be relatively rare to see a state court decision on FMLA issues, at least in Texas, as most cases are removed to federal court. If you knew you would get the same result as in Horelica v. Fiserv Solutions, Inc. (Tx. App. - San Antonio 10/8/03), there wouldn't be a need to remove. Plaintiff claimed retaliation under the FMLA when she was terminated for job abandonment when she didn't return to work following foot surgery. The Court held summary judgment was proper as the employer disproved one of the elements of a retaliation claim, that she was within a protected group. The Court held she was not in a protected group because she did not show she gave timely notice or gave notice that her condition was a serious health condition. Clearly, the court was influenced by the fact that she had surgery knowing it had a six week healing period and only told the employer the day before the proceeding and then only told it that she would be two days. Given that rationale, it seems unlikely that she would have fared any better even if she had brought it as entitlement claim rather than retaliation.