In Smith v. School Board for the City of Norfolk, Virginia, et al., No. 2:21-cv-138 (November 5, 2021), the U.S. District Court for the Eastern District of Virginia refused to grant a motion to dismiss to the Norfolk School Board and individual defendants, finding that discovery was necessary to determine whether outreach to the plaintiff office manager while she was on leave under the Family and Medical Leave (FMLA) constituted more than de minimis contact.

The court differentiated Antekeier v. Laboratory Corporation of America, a 2018 decision in which the court granted summary judgment to the defendant. In that case, discovery was complete and the court could evaluate “concrete evidence of the precise number of calls, the length of those calls, and the content discussed therein” when determining whether the contact was de minimis.

Here, the plaintiff, Pamela Smith, claimed that the defendants had repeatedly called her to assist with “financial taskings,” contacted her repeatedly “‘over the course of the day through multiple phone calls,’” and sent her several texts. Smith further claimed that these contacts affected her emotionally and cost her time off.

The court also found that the individual defendants “[were] not entitled to qualified immunity from claims brought directly under the FMLA against them in their individual capacities.” While noting that qualified immunity is an affirmative defense, the court declined to dismiss the case, as there was evidence that the individual defendants had known about the FMLA (for example, one defendant had approved the FMLA leave) and the court needed to determine whether a reasonable person would have known whether their conduct violated the employee’s FMLA rights.

Key Takeaways

Contacting employees while they are on FMLA leave is not without risk, apart from updating them on events in the office or obtaining basic information concerning when they may return. According to the court in Smith, when an employee on leave under the FMLA is asked work-related questions, such as where information is stored or other such inquiries, discovery will likely be necessary to fully develop the record in an ensuing FMLA case.