Administrative Leave With Pay Does Not Extend FMLA’s Protections

Kevin Wevodau is a Special Agent in Charge of the Bureau of Criminal Investigations for the Office of the Attorney General of Pennsylvania. Wevodau’s ultimate supervisor was now-former Attorney General Kathleen Kane.

Prior to accepting his position with Kane’s administration, Wevodau worked for the Federal Bureau of Investigation. Within a few months of working for Kane, Wevodau discovered that Kane was suspicious of him, and she accused him of being a “mole for the FBI” and of monitoring her activities, even though such was not true.

In early 2014, Kane cancelled a planned sting operation that was based on an investigation into public corruption of certain Philadelphia government officials and state legislatures on the basis that the sting operation was racially motivated. Wevodau wrote a memo to Kane in April 2014, stating that her comments regarding the sting operation were untrue. Despite Kane’s refusal to bring charges based on the evidence collected in the investigation leading up to the sting operation, the Philadelphia District Attorney reviewed the evidence and subsequently approved the prosecution of several individuals. In November 2014, Wevodau met with a Montgomery County Special Prosecutor regarding an investigation into Kane’s administration related to potential criminal charges against Kane, and Wevodau subsequently testified before a grand jury in December 2014 and January 2015.

On June 19, 2015, Kane directed Wevodau to visit her at her residence after business hours and instructed him to leave his phone on a table before they spoke. Kane told Wevodau that he was a cancer to the Office of the Attorney General, was the leak for all negative press about the office, and threatened that his reputation could be ruined and his family lost if he did not resign from his position. Wevodau refused to resign, and again testified before a grand jury for the Philadelphia District Attorney’s office related to the sting operation and Kane’s efforts to threaten and intimidate potential witnesses.

Wevodau applied for a twelve-week leave of absence under the Family Medical Leave Act for personal health issues. After the expiration of the FMLA leave period, Wevodau attempted to return to work, but was told by Kane that he would first need a fitness for duty evaluation. Kane placed Wevodau on administrative leave with pay. After five weeks on administrative leave, Wevodau asked Kane for his job back, but she continued him on administrative leave over his objections.

Wevodau sued, contending that the continuation of his administrative leave amounted to retaliation against him for his use of FMLA leave. A federal court dismissed the lawsuit, concluding that he was no longer entitled to FMLA protection.

The Court held that “the majority of courts that have reviewed extensions of FMLA leave beyond twelve weeks have interpreted the twelve-week leave period strictly and found that employees are not entitled to the protections of the FMLA after the statutory leave has expired, even where the employee has received permission to extend their leave from the employer.

“Here, Wevodau acknowledges that he did not attempt to return to work until five weeks after his FMLA leave expired. Thus, the Court finds that Wevodau was no longer entitled to the protections of the FMLA as a matter of law.”

Wevodau v. Commonwealth of Pennsylvania, 2017 WL 36395 (M.D. Pa. 2017).