Termination For Officer’s AWOL Status Does Not Violate FMLA

Ellis Jenerette, a Montgomery County, Maryland corrections officer, has moderate persistent asthma, which he treats with daily medication. Jenerette’s asthma began in childhood but worsened after he moved to Maryland in 1989.

From the beginning of his employment, Jenerette failed to maintain regular job attendance. At Jenerette’s first job performance evaluation in May 2002, his attendance was rated as “marginal.” In every subsequent performance evaluation from May 2003 until May 2007, Jenerette was rated “Does not meet expectations” with respect to regular and punctual job attendance. Jenerette took 400 hours of sick leave and 130 hours of leave without pay in 2002 alone. He maintained a similar rate of absence for the next 4 years, missing work an average of 31% of the time from 2002 to 2006.

When the County eventually terminated Jenerette, he filed a lawsuit contending that his termination was because of a serious health condition (his asthma), and violated the Family and Medical Leave Act. A federal trial court saw it differently, and upheld Jenerette’s termination.

The Court reasoned: “The County has offered extensive evidence to demonstrate that Jenerette’s dismissal was due to excessive absence. As a condition of employment, Montgomery County Personnel Regulations require all County employees to maintain regular and functional attendance at work. Yet each of Jenerette’s performance evaluations, beginning in 2002, noted attendance as an area of concern. In fact, in the two years prior to his dismissal, Jenerette missed almost half of his scheduled time from work. In 2007, Jenerette was placed on sick leave restriction and warned of possible disciplinary action. After Jenerette exhausted all FMLA leave and sick leave, Jenerette was warned that he would be considered AWOL if he did not report to work. Only after Jenerette disregarded this last warning was he dismissed. In light of the warning he received and the duration of the problem, Jenerette’s excessive absence constitutes a legitimate justification for his dismissal.”

Jenerette v. Montgomery County Government, 2010 WL 2817039 (D. Md. 2010).

This article appears in the October 2010 issue