An FMLA violation occurs when an employer improperly denies a request for leave. See Bush v. Special Sch. Dist. of St. Louis County, No. 4:08CV00170 ERW, 2008 WL 2397381, at *3 (E.D.Mo. June 9, 2008) (FMLA violation occurs when employee is denied leave to which employee was entitled); Fialho v. Girl Scouts of Milwaukee Area, Inc., No. 06-C-1218, 2007 WL 1246433, at *2 (E.D.Wis. Apr. 30, 2007) ("[t]he statute of limitations for an ordinary FMLA violation — where the plaintiff applied for leave, was entitled to leave, and had her request rejected — is two years") (quotation omitted). Reed does not argue that he was entitled to FMLA leave, but that he reasonably believed that he was on provisional leave because of Kato's explanation of the second denial letter to Badolato.
42 U.S.C. § 2000e-5(f)(1). Because the FMLA does not include an exhaustion requirement, Fialho v. Girl Scouts of Milwaukee Area, Inc., No. 06-C-1218, 2007 WL 1246433 (E.D. Wis. Apr. 30, 2007), the statute of limitations for an FMLA claim may run before a claim under Title VII or the ADA, even though all the claims arise out of the same events. Plaintiff suggests in her briefs that the different limitation periods left her no choice but to litigate her FMLA claim first without waiting until she completed the administrative proceedings on her Title VII and ADA claims, but that is incorrect.
's Br. Opp'n Def.'s Mot. Summ. J. 21.) Martinez's interference claim challenging the December 1, 2008, termination of his employment is timely since it was filed within two years of that date. See Fialho v. Girl Scouts of Milwaukee Area, Inc., No. 06-C-1218, 2007 WL 1246433, at *2 (E.D.Wis. Apr. 30, 2007). However, to the extent that Martinez makes separate interference claims, based on each of the dates he asserts .25 occurrence points were improperly assessed: July 1, July 11, August 8, August 22, October 25, November 8, and November 9, 2008, as well as his July 28, 2008, three-day suspension, and his November 21, 2008, indefinite suspension, they are time-barred because they were filed more than two years after the occurrence of the event.
Alternatively or additionally, she alleges that Defendants violated her rights under the Family Medical Leave Act by failing to reinstate her and retaliating against her after she took a medical leave of absence. (Docket # 40); see, e.g., Fialho v. Girl Scouts of Milwaukee Area, Inc., No. 06-C-1218, 2007 WL 1246433, at *3 (E.D. Wis. Apr. 30, 2007) (denying plaintiff's request for counsel in FMLA case, noting that the legal issues presented by the matter were "not complex"). Moreover, Tucovic has already adequately articulated her claims (Docket # 1, 40), participated in a scheduling conference (Docket # 19), prepared numerous motions seeking specific relief (Docket # 2, 20, 22, 43, 81), and responded to Defendants' motions (Docket # 15, 17, 62).
Essentially, where an "ordinary" FMLA violation is alleged, "where the plaintiff applied for leave, was entitled to leave, and had her request rejected," a two year statute of limitations applies.Fialho v. Girl Scouts of Milwaukee Area, Inc., 2007 WL 1246433, at *2 (E.D. Wis. April 30, 2007). Plaintiff's Complaint was filed on January 2, 2008, and the FMLA violation she alleges occurred between April 15, 2004 and May 24, 2005, more than two years before this action was filed.