## Facts

- Penny Bachelder worked for America West Airlines as a customer service representative from 1988 until her termination in April 1996.
- In 1994 and 1995, she took extended medical and maternity leave that America West treated as FMLA-protected.
- America West used an attendance “point” system under which accumulating 12 or more points could result in termination, and it counted FMLA leave as occurrences under that policy.
- In early 1996, Bachelder missed work for illness for several days over roughly three weeks, supported by doctor’s notes, and later missed a short period in April.
- On April 9, 1996, America West terminated her for “poor attendance,” “failure in administrative responsibilities,” and “unsatisfactory on-time performance.”
- The FMLA provides up to 12 workweeks of leave in a 12-month period, and regulations allow employers to choose among alternative methods for defining that 12-month period.
- America West claimed it used a backward-looking “rolling” 12-month method that exhausted Bachelder’s entitlement by mid-1995, making her 1996 absences unprotected.
- Bachelder asserted America West failed to clearly notify employees of any rolling method, requiring application of the method most beneficial to the employee, which would reset leave on January 1, 1996 and protect her 1996 absences.
- The district court granted partial summary judgment to America West on the 1996 leave-protection issue and, after a bench trial, found no improper consideration of Bachelder’s earlier FMLA absences in the termination decision.

## Issues

1. Whether an employer may deny FMLA protection by applying an undisclosed retroactive rolling 12-month lookback method, rather than the employee-favorable method required when notice is lacking.
2. Whether a claim that FMLA leave was used as a negative factor in termination is an “interference” claim under 29 U.S.C. § 2615(a)(1) and whether it is governed by McDonnell Douglas burden shifting.
3. Whether America West violated the FMLA by counting FMLA-protected absences under its attendance policy and relying on them in the termination decision.

## Decision

- The Ninth Circuit reversed the district court in relevant part and remanded.
- America West could not enforce an undisclosed rolling 12-month calculation method; because it failed to adequately notify employees of its chosen method, the calendar-year method applied.
- Under the calendar-year method, Bachelder’s 1996 absences were FMLA-protected.
- A claim that an employer used FMLA leave as a negative factor in an employment decision arises under § 2615(a)(1) and is not analyzed under the McDonnell Douglas framework.
- America West interfered with Bachelder’s FMLA rights by treating FMLA-protected absences as negative attendance points that were used in the termination decision.

## Legal Principles

- If an employer fails to select and clearly communicate which 12-month period method it uses for FMLA leave, the method most beneficial to the employee controls until proper notice is given.
- FMLA § 2615(a)(1) prohibits an employer from using an employee’s taking of FMLA leave as a negative factor in employment decisions.
- “Negative factor” use of FMLA leave is actionable as interference with substantive FMLA rights; the employee need not proceed under McDonnell Douglas to prove discriminatory animus.
- An employer interferes with FMLA rights when it counts FMLA-protected absences under an attendance or disciplinary system and that counting contributes to an adverse action, even if other reasons are also asserted.

## Conclusion

The Ninth Circuit held that America West could not retroactively apply an undisclosed rolling leave-year method to deny FMLA protection, and that terminating an employee based in part on attendance points attributable to FMLA-protected leave constitutes unlawful interference because FMLA leave may not be used as a negative factor in employment decisions.


Bachelder v. America W. Airlines, Inc., 259 F.3d 1112 (9th Cir. 2001)