Labor & Employment Law Daily Wrap Up, EMPLOYEE LEAVE—E.D. Wis.: Kohl’s did not prejudice employee who was dismissed for violating leave policies, (Mar 26, 2025)

By Molly Platnick

The employee was fired because her unplanned absence hours were “in a negative balance.”

A federal district court in Wisconsin granted a retail store operator’s motion for summary judgement in a case brought by a former employee who sued the company alleging it had terminated her in violation of the noninterference and retaliation provisions of the FMLA. The court awarded summary judgment to Kohl’s Corporation because the employee failed to establish damages, mooting her FMLA claims. The court determined the employee did not have enough evidence to show the company unfairly and inaccurately applied its leave policies, noting even if it had, “this argument again fails to acknowledge that [the employee] has no damages from any potential violation” (Lacy v. Kohl’s Corp., No. 23-cv-0765-bhl (E.D. Wis. Mar. 24, 2025)).

Leave policies. Kohl’s FMLA policy requires employees to submit leave requests through a third-party claims management system. Employees are entitled to “intermittent leave” but only for specified periods of time and must “log and appropriately code” the absence in the company’s online attendance system.

Kohl’s additionally offers certain employees 60 hours of unplanned absences (UAs) every six months. Anyone who exceeds the 60-hour allotment has a negative UA balance and their employment will be terminated. As with FMLA leave, workers are required to log and code their time in the online attendance system.

Leave request. The employee suffers from rheumatoid arthritis and in February 2022 requested FMLA intermittent leave. She was given time off until September 16, 2022, and prior to that date, the third-party administrator notified her that she could extend her leave if she completed and returned a new medical certification. The employee indicated she wanted to extend, but did not provide the required documentation and her request was denied.

Miscarriage. Between October first and December 20th, the employee used 44.25 UA hours, 22.5 of which she coded as FMLA intermittent leave, despite her request having been denied. As a result, she maintained an “inflated and incorrect” UA balance. The employee took time off again between December 28, 2022 and January 5, 2023. On January 5, 2023, the employee suffered a miscarriage, and her supervisor offered her three bereavement days and told her she could use FMLA or UA hours for any further absences. The employee took two additional days off, which she coded as FMLA on the online attendance system, but did not notify the supervisor. On February 14, 2023, the supervisor audited the employee’s reported time off and found “multiple discrepancies” between the claims management and online attendance systems.

Terminated. The supervisor concluded that if the days coded as intermittent FMLA were correctly re-coded as UAs, the employee would have a negative balance and, under company policy, should be terminated. The employee contacted the claims management system and asked for her absences on December 28-29, 2022, January 3-5, 2023, and January 12-13, 2023, to be reported as FMLA intermittent leave; the management system denied all requests. The corporation dismissed the employee on February 28, 2023, because she had a “negative balance of UA hours.

On March 1, 2023, the claims management system partially reversed its decision, granting the employee FMLA leave for December 28th and 29th. However, even after this credit, the employee still had a negative UA balance at the time of her termination.

The employee filed this lawsuit against the corporation claiming her dismissal was a violation of the noninterference and retaliation provisions of the FMLA. The corporation moved for summary judgement arguing the employee (1) was properly terminated because of her negative UA balance; (2) did not have an FMLA interference claim because she failed to notify her supervisor of her absences; (3) showed no evidence to support her retaliation claim; (4) and failed to establish damages under federal law.

The court concluded that the employee was validly dismissed for violating the company’s leave polices and could not show she was prejudiced by an FMLA violation that caused her to suffer “compensable harm.” The court granted Kohl’s motion for summary judgment because the employee could not meet her burden of establishing damages.

Proper termination. The issue was whether if the employee’s January absences were FMLA, her termination prejudicial. The corporation’s rule is an employee with a negative UA balance will be terminated. As stated above, an employee’s balance becomes negative when they take more than 60 UA hours in a six-month period. In December 2022, the employee coded her time off as FMLA intermittent leave, when it should have been UAs because she had not been granted FMLA since she had not provided a medical certification. Once the inaccuracies were corrected, the employee had a negative UA balance of -12.25 on February 10, 2023. Thus, the court found her termination was indisputably based on Kohl’s policy and did not implicate the FMLA.

The employee disputed her negative UA balance because her supervisor initially misreported a -70.25-hour balance. The company’s policy, however, is to terminate employees with any negative UA balance. It is ultimately irrelevant that the original number was miscalculated because the court looked to “the record and basic math” to confirm the employee did have an, “albeit smaller,” negative balance when she was dismissed.

Personal leave. The employee further argued summary judgment should not be granted because “there is a genuine dispute over whether [her] UA balance was negative,” as her non-FMLA absences were “approved personal leave” that would not impact her UA balance. Facts are in dispute at summary judgment only if the party alleging the dispute offers proper evidentiary support. Here, the employee introduced the company’s “general absence policy” and alleged her supervisor “admitted during deposition, and in all of her text messages…that her absences were approved.” The court found both pieces of evidence too vague to suggest the employee had received approved personal leave.

Failure to establish damages. An employee can only be awarded damages if she “has been prejudiced by [a] violation” of the relevant law. Because the employee was let go for her negative UA balance, there was no violation of the FMLA, and she could not prove damages. Without a damages claim the employee’s FMLA interference and retaliation claims could not proceed.

Other arguments. The employee’s remaining claims failed because they did not address her lack of damages. The employee criticized the company’s UA balance records as unstable and conflicting. The court was unsympathetic to this argument because workers are responsible for logging their own absences, and if there is any inconsistency in the employee’s balance it is because the employee entered her UAs incorrectly.

The company looked back six months for violations of its absence policy. The employee complained this was “a way to punish [her] for taking FMLA leave.” The court inferred this was a new argument in support of her retaliation claim, and did not find enough support, as the company regularly conducted audits of its employees’ absences.

The court was similarly unpersuaded by the employee’s notion the company should have used “progressive discipline” before terminating her. The company had a clear policy of terminating any employee with a negative balance and evidence it could have had another policy was irrelevant. It was also irrelevant that the employee’s termination letter set her termination date as December 29, 2022, a day she was absent on FMLA leave. The court reinforced that because she could not prove damages, she had no FMLA claim.

The case is No. 23-cv-0765-bhl.

Judge: Ludwig, B.

Attorneys: Alan C. Olson (Alan C. Olson & Associates) for Jamie Lacy. Ashley E. McNulty (Godfrey & Kahn) for Kohl's Corp.

Companies: Kohl’s Corporation

Cases: EmployeeLeave Retaliation Discrimination Discharge WisconsinNews