Employee’s notice of upcoming transplant was enough for FMLA claim to proceed

March 25, 2026

Tracey had a condition that required a kidney transplant. In early 2022, she told Virginia, her “coach,” who served in a quasi-supervisory role, about her condition. Later that year, Tracey told Virginia that she was a kidney transplant candidate.

On November 2, 2022, Tracey emailed the company’s benefits department to get information on long-term leave, including 3 months for recovery. She told them that the timing depended on when a viable kidney became available.

The following day, Erin, from HR, emailed Tracey information and instructions for requesting short-term disability and leave under the Family and Medical Leave Act (FMLA). Erin told Tracey that she might want to wait to initiate a claim until she had expected leave dates and to work with their third-party leave administrator.

Because she was waiting for a kidney, Tracey didn’t request leave benefits and didn’t talk to HR until February 1, 2023, when she was terminated as part of a reduction-in-force (RIF). When Tracey said she had contacted HR about her pending transplant, she was promptly reinstated.

After that, while still waiting for the transplant, on March 7, the employer gave Tracey three options:

Go on short-term disability,
Take FMLA leave, or
Resign with a severance package.

Tracey didn’t respond, as she felt the options were unrealistic because she wasn’t yet disabled. Her failure to apply for short-term disability benefits didn’t justify terminating her. Instead, Tracey hired attorneys.

On April 7, the employer fired Tracey, citing her lack of response to its questions about the timing of the surgery and her options. Tracey sued, claiming FMLA interference and retaliation. At issue was what and when the employer knew about Tracey’s kidney condition and imminent transplant.

In court

Tracey argued that the employer knew of her medical condition and her need to take leave when it selected her for termination as part of the RIF.

The employer argued that it wasn’t aware of Tracey’s condition when it selected her for termination, and that Tracey didn’t request leave. It also argued that the 3 months between her leave inquiry and her termination meant the termination wasn’t because of the leave request.

The court didn’t buy the employer’s argument.

It felt that a reasonable juror could infer that the RIF provided a mechanism to part with employees who would require future leave. The evidence suggested that the employer knew of Tracey’s atypical need for leave in the future, and they delayed termination to avoid the appearance of a connection.

Although it wasn’t certain when Tracey would need the leave, it was certain that she would need it eventually. The employer’s response was an acknowledgement of that need. Thus, Tracey’s inquiry was an invocation of FMLA rights and protected her under the FMLA.

Firing an employee after requesting FMLA leave but before the employee could take it can constitute both interference and retaliation, which is what the court said happened in this case.

An internal text didn’t help the employer’s case, as a jury could interpret it as a suggestion that the employer should delay Tracey’s termination to avoid litigation: “She is going to need 2-3 months off to recover. It’s going to be hard [to] staff that, but also I don’t want to intentionally not staff her and bring in a lawsuit.”

Pavlicin v. CapTech Ventures, Inc., Eastern District of Pennsylvania, No. 24-5415, December 18, 2025.

Key to remember: Employers whose employees put them on notice of the need for FMLA leave shouldn’t fire employees for that reason. Employers should be able to show that any negative employment decision had nothing to do with a leave request.

Publish Date

March 25, 2026

Author

Darlene Clabault

Type

Industry News

Industries

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