Sixth Circuit: Still No Definitive Answer How To Terminate an Employee Who Is Abusing FMLA Leave

Last week, a per curiam Sixth Circuit again addressed the issue of how to legally terminate an employee who is caught abusing FMLA leave.   Tillman v. Ohio Bell Telephone Company, No. 11-3857 (6^th Cir. 10-8-13).   In that case, the plaintiff suffered from chronic back pain, which his physician indicated in his intermittent FMLA medical certification form would incapacitate him 2-3 days per month and could not be predicted in advance.  Nonetheless, the plaintiff often predicted days and even weeks in advance that he would be taking FMLA leave on weekends, particularly around holidays and scheduled days off.  His FMLA leave also happened to generally fall on weekends.  After tasking its loss prevention department with investigating his FMLA use and having an independent physician review the video to certify that his actions (in doing yard work and running errands) was inconsistent with his claimed back pain, he was terminated.  The Court had no difficulty in unanimously rejecting the plaintiff’s retaliation claim on the grounds that the employer held an honest belief that the plaintiff was abusing his FMLA leave.  However, the Court acknowledged that the Sixth Circuit has not articulated a legal basis for addressing the plaintiff’s FMLA interference claim in such situations because the Sixth Circuit’s standing rule is that the employer’s motivation is irrelevant in an FMLA interference claim.  The majority ultimately concluded that the plaintiff failed to sustain his burden of proving his entitlement to FMLA leave even though he had produced a medical re-certification only six weeks before he was accused of abusing FMLA leave and the employer never challenged that re-certification or followed the steps in the FMLA regulations for asking his own physician to address his suspicious and predictive use of FMLA leave or to view the video taken by the loss prevention department.  The dissenting-concurring judge concluded that the employer should have followed the FMLA regulations when seeking re-certification of suspicious FMLA use and that the honest belief rule should be applicable in FMLA abuse cases.

The employer in this case obtained surveillance video of the plaintiff engaging in activities which were inconsistent with his claimed back pain.  They also obtained an independent medical verification.  They also interviewed the plaintiff to obtain his version of events.  What they failed to do – presumably because they believe the plaintiff’s physician was complicit in his fraud – was challenge his medical certification, inform his physician of the suspicious timing of, and predications about, his use of FMLA leave, or to have her confirm or reject that his videotaped activities on the days in question were inconsistent with his claimed back pain.  If the employer had taken these actions – which are permitted under the FMLA regulations when the employer finds the employee’s use of FMLA leave to be suspicious -- the employer might have had a slam-dunk case.  Instead, it terminated him for fraud and brought on a lawsuit.  (To the credit of the plaintiff’s union, it did not seek to arbitrate his termination).

At issue in this case is how the Sixth Circuit addresses FMLA claims.  In interference or entitlement claims, “the employer violates the act if it interferes with an FMLA-created right to medical leave or reinstatement after a qualified leave.”  In FMLA discrimination or retaliation claims, the employer violates the Act if takes adverse action against an employee who exercised his or her rights under the FMLA.  The honest belief rule generally shields the employer from a FMLA retaliation/discrimination claim if it conducted an investigation into the plaintiff’s wrongdoing before terminating him or her.   However, the Sixth Circuit frequently avoids ruling on the companion FMLA interference claim whenever it can do so because it has previously held that an employer’s intent irrelevant to such claims, which are, as a practical matter, akin to strict liability.    In the Seeger v. Cincinnati Bell Telephone and Jaszczyszyn v. Advantage Health Plan Network, cases, for instance, the Court avoided addressing the issue by noting that the plaintiff had already taken all of the FMLA leave s/he had requested before s/he was terminated for fraudulent leave abuse based on information discovered on their Facebook pages.  In other words, an employer can still be held liable for interfering with an employee’s FMLA leave even though it had an honest belief that s/he was not entitled to the FMLA leave because it questioned whether s/he had a serious medical condition, etc.    Yet, in other case, the Court has indicated that an employer can avoid liability if the employee was terminated for a reason unrelated to the use of FMLA leave.

This being said, the majority concluded that the plaintiff failed to meet his burden of proof on summary judgment.  The employer had indicated in its briefing that the plaintiff could not satisfy his burden of proving entitlement to FMLA leave on the days in questions in March 2009 based on its videotaped evidence.  In response, the plaintiff relied only on his February 2009 medical certification form, which the Court found was insufficient affirmative evidence for summary judgment.   

We may not presume from Tillman’s chronic condition and intermittent leave requests that he actually suffered from a serious condition on these specific days.   This is especially so with cases concerned with countering, impugning evidence. Otherwise, the medical certification attesting to an intermittent condition could be used as a license to take unnecessary medical leave, eliminating the employee’s burden of showing entitlement.

The concurring-dissenting judge concurred in the result, but not the theory because he felt the honest belief rule should be applied to both the retaliation and interference claims. This judge (I think correctly) believed that the plaintiff satisfied his prima facie case of FMLA entitlement by producing his medical certification, which had never been challenged by his employer.  This would be a very different case if the employer had challenged the medical certification by, as mentioned above, informing the plaintiff’s doctor of the suspicious timing and predictions about his FMLA leave.  “The medical certification provided by the employee is presumptively valid if it contains the required information and is signed by the health care provider.” Novak v. MetroHealth Medical Ctr., 503 F.3d 572, 578 (6th Cir. 2007).” Prior Sixth Circuit cases have limited when an employer may question the validity of an FMLA medical certification.  Hyldahl v. Michigan Bell, No. 09-2087 (6^th Cir. 10/31/12). 

The very nature of “intermittent leave” under the FMLA is that separate blocks of leave time taken within the intermittent leave period will be “due to a single qualifying reason.” See Roberts v. Ground Handling, Inc., 499 F. Supp. 2d 340, 352 (S.D.N.Y. 2007) (quoting 29 C.F.R. § 825.203(a) (2009)). The Act does not require that a plaintiff who has been granted intermittent leave provide additional proof that he had a serious health condition rendering him unable to work every time he takes a day of leave during the covered period. Indeed, to impose on Tillman the additional requirement that he separately establish that he suffered from a serious health condition on two specific dates -- March 15 and 20, 2009 -- as the majority’s decision requires, would contravene the statute. See Harcourt v. Cincinnati Bell Tel. Co., 383 F. Supp. 2d at 953 (holding that an employer’s recertification requirement more restrictive than the requirements of the FMLA is not enforceable against the employee).

Nonetheless, the dissent argued that the honest belief rule should be applied to interference claims, but only when there is a question about the plaintiff’s honesty:

First, and foremost, the FMLA does not provide an employee with carte blanche to obtain proper leave and then abuse that leave. Weimer v. Honda of America Mfg., Inc., 2008 WL 2421648, at * 4 (S.D. Ohio 2008) (citing Kariotis v. Navistar Int’l Transp. Corp., 131 F.3d 672, 681 (7^th Cir.1997)). This is made clear in the statutory scheme’s conditioning of an employee’s right to reinstatement following FMLA leave on the “eligible employee . . . [having] tak[en] leave . . . for the intended purpose of the leave.” 29 U.S.C. § 2614(a)(1) (emphasis added). Therefore, an employee who initially obtains valid leave for a qualifying reason and whose doctor supports continued leave -- and, thereby, as explained above, meets the qualification prong of the prima facie case -- can nonetheless lose the protections of the FMLA when he or she does not use the leave  for its intended purpose. Weimer, 2008 WL 2421648, at *4. “‘Nothing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave.’”  . . . .

                . . .

It is true that in “absolute entitlement” cases where the only issue is whether the employer affirmatively interfered with the employee’s use or attempted use of leave to which he or she was unquestionably entitled as a matter of law, the employer’s intent is not relevant and the employer’s honest belief that it acted in compliance with the law provides no defense. See e.g., Arban v. West Publ’g Corp., 345 F.3d 390, 401 (6rth Cir. 2001) (“Because the issue is the right to an entitlement, the employee is due the benefit if the statutory requirements are satisfied, regardless of the intent of the employer.” (citation omitted)); Edgar v. JAC Products, Inc., 443 F.3d 501, 508 (6th Cir. 2006) (“The employer’s intent is not a relevant part of the [interference] inquiry under [the FMLA].”). However, as the majority acknowledges, neither Arban nor Edgar address claims of FMLA abuse. In interference cases in which the employer honestly believes that the employee is abusing his leave -- by, for example, misrepresenting his medical condition --  no circuit precedent precludes the employer from asserting this honest belief in its defense.

                . . .

Viewed in this context, our precedents reflect that the “absolute entitlement” case law is of limited application in cases such as this one, where the issue is not simply the employee’s use of leave to which he is entitled under the FMLA, but rather his abuse of his FMLA leave rights. In interference cases arising under these circumstances, the honest belief rule may be applied.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit: FMLA Permits Employers to Question Use of FMLA Leave

On Tuesday, the Sixth Circuit affirmed summary judgment for an employer who terminated an employee for, among other things, misusing bereavement leave and who had been alleged to have retaliated against the employee by inappropriately questionning the employee’s prior use of FMLA leave.   Hall v. The Ohio Bell Telephone Company, No. 12-4032 (6^th Cir. 6-17-13).   The Court rejected the plaintiff’s claim that she had been subjected to “heightened scrutiny” on account of her use of FMLA leave. “‘Nothing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave.’” Because the employer was able to articulate its reasons for investigating the plaintiff and those reasons were reasonable, the plaintiff could not show that the employer’s actions were unlawful.  Moreover, the plaintiff failed to identify any other employees outside her protected class who similarly abused bereavement leave and were not fired.  Finally, the employer had an honest belief that the plaintiff had fraudulently and intentionally violated the bereavement leave policy.

According to the Court’s opinion, the plaintiff employee sought and utilized FMLA leave in 2007 for an anxiety disorder, which her doctor opined might require her to be absent for 80 hours each month.  Shortly thereafter, a newspaper article revealed that she was a hard-working author, who encouraged aspiring authors to work evenings and weekends and to take time off work to reach their dreams.  A manager requested that the plaintiff’s use of FMLA leave be investigated, but no investigation was conducted at that time.  That manager then noticed that the plaintiff utilized and exhausted her FMLA entitlement in the first half of 2008, but maintained regular attendance in the second half of the year.  When that same pattern appeared in 2009, she requested an investigation.  However, the investigation failed to reveal any abuse of FMLA leave in 2009 (where the plaintiff again maintained regular attendance during the second half of the year).  In 2010, the manager noticed that the plaintiff called off almost every Monday and requested an investigation when she learned that the plaintiff’s friends had planned a three-day vacation weekend.  However, again, the investigation disclosed no abuse of FMLA leave and the plaintiff reported to work that particular Monday.

Throughout this time, the plaintiff experience performance problems and was formally counseled and warned.  She also complained that she was being harassed on account of taking FMLA leave.   The plaintiff was transferred to another work team following her complaint about her manager’s harassment.  Ultimately, plaintiff requested and received bereavement leave for her step-grandchild even though the policy only covered grandchildren and she had falsely claimed that the step-grandchild was her grandchild.  She had requested this time off when she only had 1.75 hours remaining of FMLA leave that leave year.  An investigation was conducted and she was terminated for intentionally engaging in fraud by taking inappropriate bereavement leave.

The plaintiff claimed that she had been terminated on account of using FMLA leave and had been subjected to “heightened scrutiny” on account of using FMLA leave.  In particular, she complained that she had been investigated twice and harassed by her manager on account of her FMLA leave use.  The Court was not impressed with her argument:

“Unlike its role in establishing a prima facie case, ‘the law in this circuit is clear that temporal proximity cannot be the sole basis for finding pretext.’”  . . .  However, “‘suspicious timing is a strong indicator of pretext when accompanied by some other, independent evidence.’”  . . . . Courts measure temporal proximity from the time an employer learns of a protected activity to the time of the adverse employment action.  

Moreover, the Court found a distinction between the employer’s decision to investigate an employee’s FMLA use and the decision to terminate an employee’s employment:

“‘Nothing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave.’” Allen v. Butler Cnty. Comm’rs, 331 F. App’x 389, 395 (6^th Cir. 2009) (emphasis omitted) (quoting Callison v. City of Philadelphia, 430 F.3d 117, 121 (3d Cir. 2005)); see also Stonum v. U.S. Airways, Inc., 83 F. Supp. 2d 894, 901 (S.D. Ohio 1999) (requiring a defendant to articulate “‘particularized facts’ to support its termination decision, not its decision to conduct surveillance” (emphasis in original)). However, “when an ‘employer . . . waits for a legal, legitimate reason to fortuitously materialize, and then uses it to cover up his true, longstanding motivations for firing the employee,’ the employer’s actions constitute ‘the very definition of pretext.’”

                 . . . .

Taken together, the temporal proximity and alleged heightened scrutiny are insufficient evidence of pretext. First, the better measurement of temporal proximity is three years—the time between Hall’s first FMLA request and her termination—because the earlier FMLA investigations did not result in any adverse employment action. Second, the record does not support that Ohio Bell targeted Hall for investigation merely because she took FMLA leave. Rather, Ohio Bell has presented evidence that it investigated Hall in good faith based on evidence suggesting that she might have been abusing paid FMLA leave. Finally, Smith’s alleged harassment of Hall is not evidence of pretext because Smith was not involved in the decision to terminate Hall. Thus, even in combination, the temporal proximity and alleged heightened scrutiny are insufficient to demonstrate that “an illegal motivation was more likely than that offered by the defendant.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Affirms Dismissal of FMLA Claim After Employee Posts Party Pictures on Facebook While on FMLA Leave

This morning, the Sixth Circuit affirmed summary judgment in favor of an employer who fired an employee for fraudulent use of FMLA leave based on pictures she posted on her Facebook page. Jaszczyszyn v. Advantage Health Plan Network, No. 11-1697 (6^th Cir. 11-7-12).  The plaintiff employee brought claims for FMLA interference and retaliation.   In affirming summary judgment, the Court relied heavily on its prior Seeger decision where similar claims had been brought after an employee was fired for attending Oktoberfest while on FMLA leave.  

According to the Court’s opinion, the plaintiff had sought intermittent FMLA leave from her CSR job based on lower back pain, but failed to return to work for any period even after her physician indicated that she would only need to be off work sporadically and only had flare-ups about four times per month. She also failed to communicate regularly or appropriately with the employer about her continuing need for leave or these “flare-ups.” Her doctor then indicated that she was completely incapacitated and needed to be off work for about another month.  About five weeks into her medical leave, while the plaintiff was supposed to be completely incapacitated and unable to work, her co-workers noticed pictures that she had posted on her Facebook page enjoying herself at a local Polish heritage festival.   Her co-workers then notified the supervisor and an investigation was commenced, which included an interview with the plaintiff about her partying while she was in too much pain to come to work.  The plaintiff could not explain her actions and claimed that the pictures did not reflect the pain she was feeling.   She also claimed that she did not realize that part-time work was an option during her FMLA leave.  Based on her silence in responding to some questions and her inability to provide a justification for taking almost two months off work when she was physically able to dance and party, she was fired.  The corrective action memorandum indicated that she had been terminated for fraudulent use of leave, but the personnel form indicated that she was fired for absenteeism.

The Court rejected the plaintiff’s interference claim because she had been granted all of the leave she had requested under her first medical certification for only intermittent leave. It implies that her interference claim did not encompass her request and medical certification to extend that leave of absence based on her complete incapacity. In any event, it also finds that an employee may be fired during FMLA leave "if the employer has a legitimate reason unrelated to the exercise of FMLA rights" for terminating the employee.    As for her retaliation claim, the employer had an honest belief that she was fraudulently taking FMLA leave based on her Facebook pictures and the subsequent interview with her about them. The court rejected the plaintiff’s attempt to create an issue of fact from a personnel form which indicated that she had been fired for poor attendance instead of fraud.

Another factor that both this and the Seeger case have in common is that both of the plaintiff-employees were turned into management for abusing FMLA leave by their co-workers.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Appeals Court: Arbitrator Exceeded Authority in Ignoring Parties’ Stipulation Removing Legal Issue from Consideration.

Today, the Summit County Court of Appeals vacated an arbitrator’s order reinstating a city health department employee who had been discharged for taking college classes when she was supposed to be on FMLA leave. City of Akron v. Civ. Serv. Personnel Assn., Inc., 2008-Ohio-4331. The court disagreed with the arbitrator’s rationale that the city’s pre-termination notice was constitutionally deficient because its focus seemed to announce a decision already made instead of giving her notice of her opportunity to present exculpatory evidence to preserve her employment. Instead, the court found that the arbitrator exceeded her authority by ignoring the parties' stipulation that the city had honored the employee's Loudermill rights by holding the pretermination hearing when the arbitrator ruled that the city had violated the employee's due process rights through a defective notice of termination.

According to the court’s decision, the employee “sought to attend college courses during regular working hours through the City’s “Academic Flexible Work Schedules” program, [but] withdrew her request to participate in the program . . . when management indicated that staffing shortages necessitated her working all of her regular hours. Instead, [the employee] submitted a request for Family Medical Leave Act (“FMLA”) leave time in order to care for her sick son. Health Department investigators later discovered [the employee] attending a college course during the hours that she had been approved to take her FMLA leave time.” Not surprisingly, “the City subsequently notified [the employee] that she was being recommended for discharge.” According to the City, a pretermination hearing was then held “consistent with Cleveland Bd. of Educ. v. Loudermill (1985), 470 U.S. 532. The City further claims that [the employee’s union] sent the City a “Loudermill Response” after the hearing” on October 20, 2006. The union also filed a grievance challenging the employee’s termination. The City says that it considered all of this information and then City “finally notified [the employee] on October 23, 2006 that she was in fact being discharged, effective October 24, 2006.” The union sought arbitration on October 31, 2006.

During the March 2007 arbitration hearing, the parties “entered two stipulations before the arbitrator: (1) that the matter was properly before the arbitrator for resolution, and (2) that [the employee] had been given a Loudermill hearing.” Notwithstanding these stipulations, the arbitrator reinstated the employee in May 2007 because she determined that the City “failed to comply with Loudermill and the due process protections afforded to [the employee] as a civil servant. The arbitrator reasoned that the City’s notice of discharge, issued on October 11, 2006, clearly informed [the employee] that she was “hereby discharged” even though it preceded any response from [the union]. Therefore, the arbitrator determined that the City never gave [the employee] a pretermination opportunity to respond to the charges against her and terminated her without just cause.” When the city filed an appeal to vacate the arbitration decision, the trial court confirmed the arbitration award on the grounds that the parties’ stipulation raised factual matters which could not be reversed on appeal.

On appeal, the city argued that the arbitrator ignored the parties’ stipulation that the city had honored the employee’s Loudermill rights and the Court agreed. “An arbitrator also exceeds her authority, however, when she misinterprets or exceeds the conditions of a stipulation. Moreover, “Loudermill [only] requires a ‘classified civil service employee’ to be given a pretermination disciplinary hearing. . . . [S]uch hearing need not be elaborate, but must afford the employee the opportunity to have an explanation of the employer’s charges and evidence against [her], and an opportunity to present [her] side of the story.” The Court determined that the parties’ Loudermill stipulation removed a legal issue from the arbitrator’s consideration and was not merely a factual stipulation which was beyond the court’s jurisdiction to review on appeal. “By wholly ignoring the stipulation, the arbitrator went beyond the scope of the issue presented to her and exceeded her authority,” which is a matter determined by the contract -- and stipulations – entered into by the parties (i.e., the employer and the union).

Insomniacs can read the decision in full at http://www.sconet.state.oh.us/rod/docs/pdf/9/2008/2008-ohio-4331.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.