Pereda v. Brookdale Senior Living

Plaintiff appealed the district court's dismissal of her two-count complaint alleging interference and retaliation under the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. 2601 et seq., against defendant. It was undisputed that plaintiff, at the time she requested leave, was not eligible for FMLA protection because she had not worked the requisite hours and had not yet experienced a triggering event, the birth of her child. It is also undisputed that she would have been entitled to FMLA protection by the time she gave birth and began her requested leave. The court held that because the FMLA required notice in advance of future leave, employees were protected from interference prior to the occurrence of the triggering event; a pre-eligible employee had a cause of action if an employer terminated her in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee became eligible; a pre-eligible request for post-eligible leave was protected activity because the FMLA aimed to support both employees in the process of exercising their FMLA rights and employers in planning for the absence of employees on FMLA leave; and because plaintiff engaged in protected activity by discussing her maternity plans with her employer, she has alleged a valid cause of action for retaliation.