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A federal judge has ruled that a former law clerk’s lawsuit alleging she lost her job at the Lancaster County Attorney's Office for taking time off under the Family Medical Leave Act can go forward.

In the suit filed in 2017 in U.S. District Court, Nancy Weber of Lincoln said Joe Kelly — then-county attorney and now U.S. Attorney for Nebraska — ultimately gave her the choice of retiring or being fired after she asked for time off for surgery in April 2016.

She had worked at the office for 16 years.

Among other things, Weber's attorney, Melanie Whittamore-Mantzios, argued the county interfered with Weber's entitlement to FMLA twice: in November 2014, when she wasn't allowed to take full leave after her husband's open-heart surgery; and in 2016, when she was forced to retire two days before her scheduled FMLA leave.

Attorneys with the law firm Baylor Evnen, which represented the county, argued Weber's claims should be dismissed. The 2014 allegation, they argued, was barred by the statute of limitations, and she couldn't prove interference on the 2016 allegation because she had been terminated before the county could approve her request for FMLA leave.

In an order this week, Chief U.S. District Judge John Gerrard said it was undisputed that Weber was allowed to receive intermittent FMLA leave to care for her husband in 2014.

"While it may be true that the county should have provided full leave instead of intermittent leave, that misunderstanding cannot rise to the level of a 'reckless disregard' for the FMLA," the judge wrote.

So, he said, the 2014 claim had been raised too late.

But Gerrard allowed the 2016 claim to go forward.

In his order Monday, he said an employer cannot use the taking of FMLA leave as a negative factor in employment actions or count the time under "no fault" attendance policies.

"Simply put, when an employer attaches negative consequences to the exercise of protected rights, it has 'chilled' the employee's willingness to exercise those rights because he or she does not want to be fired or disciplined for doing so," Gerrard wrote.

Here, he said, a reasonable fact-finder could conclude that's what the county did.

Shortly after Weber gave the county her formal FMLA documentation for foot surgery on April 7, 2016, she was informed she needed to attend a disciplinary meeting. After the meeting and just days before the surgery, her employment was terminated.

The county argued it was Weber's poor performance, not her request for leave, that led to her termination.

But Gerrard said he wasn't persuaded. Concerns about her difficulties keeping up with workload arguably could be linked to her need to miss work for her surgery.

He said "a jury will make that determination."

Gerrard dismissed Weber's other claims against the county alleging violations of the Americans with Disabilities Act and Nebraska Fair Employment Practice Act.

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Reach the writer at 402-473-7237 or lpilger@journalstar.com.

On Twitter @LJSpilger.

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