>So US District Judge William Hart of the US District Court for the Northern District of Illinois refused a request by the Village of Glendale Heights to throw out an FMLA suit by Jacquelyn Dodaro, a former office technician for the village’s public relations department, according to Washington-based legal publisher BNA.

>Glendale Heights tried to implement the “rolling method” for determining FMLA eligibility – under which the parties agreed that Dodaro would have been ineligible for leave – by providing employees with written copies of the new policy. But the change was not actually effective until a few years later, when the town documented the policy in its employee handbook as required by US Department of Labor regulations, the judge found.

>Because the town did not properly choose the rolling method during the time at issue in Dodaro’s case, Hart found, the more employee-friendly “calendar method” was applicable. Under that scheme, Dodaro was eligible to take FMLA-protected leave in June 2000, when she was suspended, and later fired for excessive absenteeism, Hart said.

Work Absences

>During her employment, Dodaro had a “substantial number” of absences, the court said. From February 20, 1998, to the end of the year, she was absent from work for 221.5 hours. In 1999, she was absent for about 590.75 hours. About 472 hours of that was unpaid FMLA leave, the court said.

>Between January 1, 2000, and May 31, 2000, Dodaro was absent 132.5 hours. On May 31, while at work, Dodaro felt unbalanced and dizzy and was taken to a hospital in an ambulance. Before leaving, she requested FMLA leave but the request was denied because she already had used 12 weeks of leave in the preceding year. The employer allowed her to use her vacation time to cover absences through June 8, but her request for unpaid leave beginning June 8 was denied.

>In June, she was diagnosed with Meniere’s Disease, a condition that causes dizziness and imbalance because of too much fluid in the inner ear. Her doctor informed the village that she had a “balance problem” and recommended that she not work until her balance recovered. Sometime between June 8 and June 22, Dodaro’s supervisor decided that she should be suspended for being on unauthorized leave and because of her past history of absenteeism, the court said. Effective June 22, she was suspended for 10 days. Ultimately Dodaro was fired, effective August 18.

>The town’s Administrative Policy 98-04, dated April 27, 1998, provides that an employee’s FMLA eligibility will be defined as a rolling 12-month period, measured backward from the date an employee uses FMLA leave. When the written policy was first issued, it was provided to each employee, and a copy was posted on the employee bulletin board for three to six months. In September 2000, after Dodaro was fired, the policy was incorporated into the employee handbook.

>FMLA notice regulations state that if the employer provides any written guidance to employees about their leave rights, such as an employee handbook, information about FMLA rights must be included. Regulations further provide that if an employer does not properly notify employees of their FMLA rights, it may not take action against them for failure to comply. The case is Dodaro v. Glendale Heights, N.D. Ill., No. 01C6396, 3/28/02.