The 9th Circuit Court of Appeals has upheld a decision rejecting a former Alaska
Airlines mechanic's argument that he was entitled to protection under the Family
and Medical Leave when he made a cross-country trip to retrieve the family vehicle
during his wife's late-stage pregnancy difficulties.
H. Charles Tellis argued that his trip and phone calls to his wife during the
trip were to "to care for" her and entitled him to protection from
termination under the Family and Medical Leave Act.
In July 2000, Tellis requested some days off from work because his wife was
having difficulty with her pregnancy. His supervisor suggested that he contact
the Benefits Office for FMLA forms. At first, Tellis asked for holiday
and vacation leave for July 5, 6, and 7. On July 5, Tellis contacted the office
to request forms for FMLA leave, and the office sent him the appropriate forms.
A day later, his vehicle broke down. He decided to fly to Atlanta, where he
owned another car, and drive the vehicle back to Seattle. He left for Atlanta
the evening of July 6 and arrived back in Seattle the evening of July 10. While
he was gone, he called his wife regularly on his cell phone from the road.
Tellis's next scheduled shift after his three days of requested leave was July
11. When Tellis was absent without having obtained the required advance approval,
Alaska Airlines attempted to contact him but was unsuccessful. Alaska Airlines
decided to terminate Tellis on July 18, 2000, for his unexcused absences.
When Tellis and his union complained, the company offered to reinstate him
if he agreed to allow the company to place a disciplinary letter in his file
for a period of one year. Tellis rejected the offer.
FMLA allows eligible employees to take up to 12 workweeks for leave to care
for a spouse, son, daughter, or parent with a serious health condition. The
question in the case was whether the activities of Tellis qualified under the "care for" requirement.
Tellis argued he was entitled to FMLA protection because his trip to retrieve
the family car provided psychological reassurance to her that she would soon
have reliable transportation, and his phone calls to her while he drove back
to Seattle provided moral support and psychological comfort.
The court rejected the argument, saying that under FMLA caring for a family
member with a serious health condition "involves some level of participation
in ongoing treatment of that condition."
"Tellis's activities cannot be considered 'caring for' his wife,"
the court wrote. "Instead of participating in his wife's ongoing treatment
by staying with her, he left her for almost four days. Tellis claims his trip
provided psychological reassurance to his wife, but he did not travel to Atlanta
to participate in his wife's medical care. Having a working vehicle may have
provided psychological reassurance; however, that was merely an indirect benefit
of an otherwise unprotected activity--traveling away from the person needing
care. Tellis also claims his phone calls provided moral support and comfort,
but his phone calls during his trip did not constitute participation in ongoing
treatment. Common sense suggests that the phone calls Tellis made do not fall
within the scope
of the FMLA's 'care for' requirement
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