It’s summer time, which means family vacations and travel for many.  But, when was the last time you were able to take 11 weeks of vacation?


In a recent Florida case, Hurley v. Kent of Naples, Inc., No. 13-10298 (11th Cir. 2014), that was exactly the issue. Patrick Hurley, began working for Kent of Naples, Inc. in 2001 as CEO.  In 2008, Hurley sent the CEO of the parent company, Gil Neuman, an email with a vacation scheduled that listed 11 weeks of vacation time over two years. Responding as many employers would to a demand for 11 weeks of vacation, Mr. Neuman denied the request.  There were a few back and forth emails in which Mr. Hurley explained that the requested vacation time was not optional and that he had been advised to take said time off by medial professions.  Shortly thereafter, Mr. Neuman terminated Mr. Hurley for insubordination and poor performance

A week after the termination, Mr. Hurley’s doctor filled out a Family Medical Leave Act (“FMLA”) form noting that Mr. Hurley suffered from depression and needed treatment.  Thereafter, Mr. Hurley filed a FMLA interference and retaliation lawsuit.

While the defendant admitted that Mr. Hurley had a chronic serious health condition there was no evidence that there requested vacation time was for a period of incapacity.  At trial, the jury found that Mr. Hurley was an eligible employee under the FMLA, that he suffered from a serious health condition and that he gave proper notice under the FMLA.  But, the jury answered “no” to whether Mr. Hurley’s leave request caused his termination, but then awarded damages.  In sum, an inconsistent verdict by the jury.

On appeal, Kent of Naples Inc. reasoned that Hurley’s requested vacation leave did not qualify for FMLA protection. Mr. Hurley, on the other hand, argued that he needed only to “potentially qualify” for FMLA leave in order to file an interference claim against his employer.

The Eleventh Circuit siding with Kent of Naples, found that:

Giving an employer notice of unqualified leave does not trigger the FMLA’s protection; otherwise, the FMLA would apply to every leave request.

Furthermore, the Eleventh Circuit also ruled that the requested leave was not for a period of incapacity (as defined by the FMLA) since Mr. Hurley did not contend that his leave was for a period of treatment or that he would be incapacitated (since he could not predict his period of incapacity) during the proposed vacation days.

Despite the fact that the employer eventually won this case, protracted litigation and an appeal are both expensive.  As such, employers need to train supervisors in the FMLA certification process and be careful and diligent in documenting the process when an employer provide notice of a need for leave that may qualify for FMLA.

Dori K. Stibolt is an attorney with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or