Worker’s entire service decides FMLA eligibility

In an issue of first impression, the majority of Indiana Supreme Court justices ruled an employee filling multiple positions with the same employer is eligible for leave under the Family and Medical Leave Act if the employee's total service is sufficient to qualify, even if the service in either position alone doesn't qualify.

In Gary Community School Corporation v. Tom Powell, No. 45S03-0809-CV-482, the high court had to determine whether an employee's FMLA eligibility is determined by the employee's entire service to the employer or separately for each position. The trial court ruled Tom Powell was an eligible employee for purposes of both his teaching and coaching positions; the Indiana Court of Appeals reversed, holding the issue is controlled by the parties' treatment of the jobs as unified or separate.

Powell worked as a math teacher, night school teacher, and head football coach in the summer of 2001 when he had to take FMLA leave for seven weeks. When he returned to his job as math and night school teachers, he learned the Gary Community School Corp. fired him from his head football coaching job. He complained to the high school principal and spoke with a news reporter. He was denied the position in 2002 and 2003. That led to his action against GCSC alleging it violated FMLA by not restoring him as coach for the 2001 season and by retaliating against him for taking FMLA leave by rejecting his application in subsequent years to become the head coach.

The high court examined the language of the FMLA, committee reports accompanying the passage of the Act, and the Fair Labor Standards Act to conclude the 1,250-hour requirement applies to the employee's overall service to the employer, and that even though Powell had separate academic and athletic supervisors, GCSC is his employer for purposes of the FMLA, wrote Justice Boehm for the majority.

There was also sufficient evidence to support the jury's determination GCSC had retaliated against Powell. Powell demonstrated he was engaged in activity protected by the FMLA – taking leave and opposing the school corporation's FMLA violation by complaining to the newspaper. He also showed adverse employment action and a casual connection because before the article was published in the newspaper, a three-person committee recommended him for head coach in 2002, but afterwards, the athletic director didn't want to recommend Powell because he had spoken to the media. Finally, GCSC's proffered proper reasons for not rehiring Powell are pretextual.

The Supreme Court affirmed the propriety of front pay in the instant case, but did rule the front pay should be discounted to present value. It used the Indiana statutory rate of 8 percent because there is no clear authority regarding the discount rate applicable to an award of front pay under FMLA. The high court also affirmed the trial court's award of attorney fees to Powell.

Justice Brent Dickson dissented without a separate opinion, believing the Court of Appeals correctly decided the issues in the case.