Whether the FMLA prohibits an employer from refusing to restore an employee to work when the employee has timely requested restoration and satisfied all conditions to restoration

QUESTIONS PRESENTED The statutory language of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”) provides that employees are “entitled to be restored” to work at the end of leave. Does the word “entitled” have any meaning? The Petitioner took FMLA leave to recover from surgery. The Petitioner timely delivered the required physician’s certification to return to work and he requested restoration. The Petitioner was not restored, but instead was terminated as a cost savings measure by his employer. The district court and the Second Circuit did not find these admitted acts by the employer to be in violation of the FMLA. The Questions Presented are: 1. Whether the FMLA prohibits an employer from refusing to restore an employee to work when the employee has timely requested restoration and satisfied all conditions to restoration (e.g. delivery of a physician’s clearance to return to work)? 2. Whether the FMLA prohibits an employer from terminating an employee requesting restoration based upon the employer’s desire to eliminate the future compensation expense arising from that employee’s return? ii LIST OF PROCEEDINGS United States Court of Appeals for the Second Circuit No. 19-3538 Unpublished Summary Order Steven B. Barger, v. First Data Corporation, Defendant-Appellee. Frank Bisignano, Dan Charron, Anthony Marino, Karen Whalen, Lori Graesser, Rhonda Johnson, Defendants. Order Affirming Trial Court: July 6, 2021 Order Denying Rehearing: August 6, 2021 United States District Court for the Eastern District of New York Case No. 1:17-cv-4869-FB-LB Unpublished Jury Verdict Judgment: September 26, 2019 Order Denying Motion for New Trial: September 16, 2020