MARSHALL -- Being terminated for falling asleep at work does not violate the Family Medical Leave Act , Judge T. John Ward wrote in an opinion and order that dismissed a case against Eastman Chemical Company.

Virginia Salmon filed suit against the Longview company in the Marshall district court, asserting she was terminated out of retaliation for requesting leave, violating the Family Medical Leave Act.

Salmon requested and was given family medical leave following surgery on her ankle. She received the FMLA package for the leave in January 2006, less than two weeks before her another scheduled surgery.

However, just a week later, Salmon's supervisor escorted her to the nurse's office because she was asleep at her work station.

Five of Salmon's co-workers and supervisors testified that Salmon was asleep. Even Salmon admits she could have been asleep because she was taking a multitude of drugs. She wrote a letter to her supervisors at Eastman, admitting her wrongful conduct and apologizing.

A disciplinary review committee was held and the events of the day were discussed and put in writing. The committee discussed how Salmon had been disciplined for a "multitude of issues and placed on a Warning and Performance Improvement Plan."

She was placed on this plan a month prior to requesting leave. The plan stated that Salmon was told that "any type of rule, policy, safety, attendance, or procedure violations will result in further disciplinary action up to and including termination." According to court records, Salmon violated the plan on several occasions.

After the committee deliberated, Salmon was terminated. Salmon worked as an operator for almost twelve years prior to her termination.

Under the FMLA, employers "may not penalize employees for exercising their rights."

The plaintiff only alleged that Eastman Chemical Company "failed to continue her employment during a period during which she had a 'serious health condition', as defined by FMLA."

Within the Sept. 9 opinion dismissing the case, Judge Ward wrote that Salmon failed to produce any evidence supporting her claims that Eastman Chemical violated the FMLA. In fact, the Judge wrote, that Salmon testified that she never had any problems taking or getting paid for her FMLA leave.

"Simply put, Eastman has provided ample evidence that the termination was justified, and not a surprise to Salmon, while Salmon has produced no evidence to support her claim," the opinion states.

With the opinion, Judge Ward grants the defendants' motion to dismiss the case and denies all other pending motions.

Case No 2:07cv00148

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