In the case of Grosenick v. Smithkline Beecham Corporation (“Glaxo”), No. 05-3393 (CA 8 2006), several different dates were bandied about between employer and employee as to the start date of her FMLA leave. In the end, the Eighth Circuit Court of Appeals held that such confusion does not extend an employee’s FMLA leave from work beyond 12 weeks in a 12 month period.

Mary Grosenick worked as a pharmaceutical sales representative for Glaxo from December 1992 until January 2002. On July 30, 2001, Grosenick notified her employer that her doctor had recommended that she undergo surgery on her knee. Grosenick provided the written recommendation to Sandi Cerretti, Glaxo’s employee in charge of handling leave requests. Later that day, Cerretti sent Grosenick a form letter notifying Grosenick of her eligibility for FMLA protection: “[t]he medical and/or family leave you have requested will be counted against your twelve-week entitlement under FMLA.” The form letter went on to indicate “[s]hould your leave of absence exceed twelve weeks within a rolling twelve month period, Company policy allows your manager to fill or eliminate your position.” Eager to leave work, Grosenick sent an email to her supervisor indicating that her leave would start on that same day, July 30, 2001; however, Glaxo did not compute her leave to begin until August 2, 2001.

On August 20, 2001, Grosenick attended an appointment with her doctor. At this time, they completed her FMLA leave forms. Grosenick’s physician certified that she should not return to work until her knee surgery was complete.

Glaxo finally approved Grosenick’s FMLA leave on August 30, almost one month after it had begun. Glaxo mistakenly indicated the leave period in this approval as being from August 20 through September 20, 2001.

On September 24, 2001, Glaxo approved a second request for medical leave extending Grosenick’s leave until October 10, 2001. Apparently, Grosenick was unhappy with this extension as she calculated her leave (by using the August 2 start date) to last through October 24. On or around October 10, Grosenick followed her complaint with a medical update indicating that she was unable to work at all and that her surgery was scheduled for November 20. Concerned about her medical leave and continued employment, Grosenick made several phone calls and emails to Glaxo arguing about the start date of her leave and claiming not to have had received several communications from Glaxo notifying her of the end of her twelve week FMLA leave.

Grosenick returned to work on October 21 and worked through October 24. Glaxo classified Grosenick as a “displaced employee” at this time which did not terminate her employment but left Grosenick without an assigned position in the company. Pursuant to company policy, Grosenick had 30 days to find a new position within the company.

On October 26, Glaxo notified Grosenick that she could not return to work without doctor’s approval because her last medical update indicated that she was unable to work. Grosenick must have prevailed upon Glaxo to extend her leave as it did just that on October 27. Now Grosenick was again on leave until December 10. This final grant of medical leave now listed her leave start date as August 2 whereas the previous two had listed the start date as August 20.

On October 30, Grosenick received a voicemail that her position had been filled, confirming her status as a displaced employee with the company.

On the following day, Grosenick kept an appointment with her physician. At this time, her doctor gave her approval to return to work with some restrictions; however, this approval to return to work occurred after the FMLA leave had expired if calculated from the August 2 date.

Grosenick claimed that in November of that year, Glaxo indicated that because of her displaced employee status, it had attempted to obtain for her one of several open positions within the company. Grosenick applied for these positions but received no response. In January 2002, Glaxo terminated Grosenick’s position from the company.

Unhappy with her situation, Grosenick sued Glaxo under the FMLA claiming that she did not receive adequate notice of the dates of her FMLA leave and that her leave should have been extended because she had worked while on leave. After a period for discovery, Glaxo moved for summary judgment on the claims. The district court granted summary judgment and Grosenick appealed to the Eighth District Court of Appeals.

On appeal, Grosenick argued that the failure to properly notify her of the start and end dates of her FMLA leave time means that Glaxo improperly filled her position in violation of the FMLA.

The appeals court began its analysis by noting that the FMLA was designed to allow an employee twelve weeks of protected leave within a twelve-month period, and that in the case of Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 95-96, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002), the United States Supreme Court struck down a Department of Labor notice requirement regulation by holding that an employee cannot get more than twelve weeks of leave based solely on the employer’s lack of notice. Particularly, in Ragsdale, the employee had taken 30 weeks of leave. The employer had not approved FMLA protection until after the 12 week period had expired. The employee argued that the FMLA leave did not begin until the employer approved it. But the Court held that the lack of notice during the FMLA protected period did not give a plaintiff a cause of action.

In the instant case, Glaxo approved the FMLA leave approximately 18 days after the leave had begun (much sooner than the employer in Ragsdale). Also, much discussion had occurred between the parties concerning the proper end date of the leave. Grosenick had also sent an email to her supervisor indicating her leave would start on July 30. Given these facts, Grosenick’s argument that her leave began upon final written approval by Glaxo did not hold much weight.

In the end, it may have appeared to the appeals court that Grosenick was simply trying to take advantage of her employer’s mistake. Given Glaxo’s several extensions of the medical leave period and attempts to find Grosenick other employment within the company, it had demonstrated that it had done more than what was legally required to help Grosenick.

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