An employee had four unexcused absences in April of 2005 as well as two
prior unexcused absences in February of 2005. Under the employer’s
attendance policy, on the “fourth occasion” of an employee’s unexcused
absence from employment, the employee may be terminated.

The employee in question had not been terminated, but received a demotion. The employee
claimed that the employer both interfered with his FMLA rights but also had
retaliated against such rights. In this case, the Court determined that the
employee, who had been drinking on these occasions, had not given the
employer any reason to believe there was FMLA leave eligibility, as he had
simply called “in sick” and had not referenced any serious illness.

The Court also called into question the continued validity of the “constructive
notice doctrine,” which states an employee’s inability to communicate his
illness to his employer or clear abnormalities in the employee’s behavior
may constitute constructive notice of a serious health condition. The Court
therefore concluded the employee had not been demoted for absences protected
by FMLA or discriminated against for exercising such non-existent rights, as
no such rights existed. Scobey v. Nucor Steel-Arkansas (8th Cir. 2009).