On Tuesday, a divided federal Sixth Circuit Court of Appeals affirmed summary judgment for an employer that fired an employee for disability fraud while on FMLA and paid disability leave based on herniated disc pain because he attended Oktoberfest and walked around. Seeger v. Cincinnati Bell Telephone Co., No. 10-6148 (6th Cir. 5-8-12). Although the employee proved a prima facie case of FMLA retaliation and medical evidence that his actions were within his medical restrictions, the Court agreed that the employer had an honest belief that the employee was guilty of disability fraud based on a reasonable investigation. The employee could not prove unlawful interference with his FMLA leave when he received all of the FMLA leave he requested and was reinstated to his position following his FMLA leave.
According to the Court's opinion, the employee had been approved for FMLA and paid disability for a herniated disc. His physician refused to approve him for light duty or part-time work. The employee was seen by several co-workers walking around and socializing at Oktoberfest when he was supposed to be in too much pain to work. Two co-workers were aware that he was in pain while at the event, but he failed to produce this evidence until the litigation commenced. After the employee returned to work and was reinstated to his position, the employer conducted an investigation and asked the employee to submit evidence on his own behalf. It ultimately concluded that he had fraudulently claimed to be in excruciating pain to avoid working when he was able to walk significant distances over a 90-minute period. Therefore, he was fired three weeks after returning to work from his FMLA leave.
The employee filed suit alleging that had been fired in retaliation for exercising FMLA leave and that the employer interfered with his FMLA rights. The Court found that these claims were subject to an identical analysis even though prior decisions had found that an employer's intent is irrelevant to an FMLA interference claim. This is because the employee had been given all of the FMLA leave he had requested and had been reinstated to his former position after being released to return to work by his physician. In other words, there can be no FMLA interference claim if the employee is provided with his requested FMLA leave. Instead, he has only a retaliation claim.
Although the plaintiff had proved a prima facie case of retaliation, the employer stated a legitimate and non-discriminatory reason for the termination based on the perceived fraud and dishonesty in abusing paid disability leave. "[A]n employee on FMLA leave may be terminated for violating the more stringent requirements of a concurrent paid leave policy, as long as that policy is reasonable and "neither conflicts with nor diminishes the protections guaranteed by the FMLA." Moreover, the employee could not prove that the employer's explanation was a pretext or disguise for unlawful retaliation. ""[A] reason cannot
. . . be a pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason."
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." . . .. A plaintiff may establish pretext by showing that the employer's proffered reasons (1) have no basis in fact; (2) did not actually motivate the action; or (3) were insufficient to warrant the action. . . . "Whichever method the plaintiff employs, he always bears the burden of producing sufficient evidence from which the jury could reasonably reject [the defendant's] explanation and infer that the defendant[] intentionally discriminated against him.
The plaintiff attempted to show that the employer's explanation had no basis in fact when his Oktoberfest visit was within his medical restrictions. However, the Court's majority elected to follow the "honest belief" rule.
Where the employer can demonstrate an honest belief in its proffered reason, however, the inference of pretext is not warranted. Thus, this Circuit has adopted the "honest belief rule." Under [this] rule, an employer's proffered reason is considered honestly held where the employer can establish it reasonably reli[ed] on particularized facts that were before it at the time the decision was made. Thereafter, the burden is on the plaintiff to demonstrate that the employer's belief was not honestly held. An employee's bare assertion that the employer's proffered reason has no basis in fact is insufficient to call an employer's honest belief into question, and fails to create a genuine issue of material fact. . . .
The ground rules for application of the honest belief rule are clear. A plaintiff is required to show "more than a dispute over the facts upon which the discharge was based." . . . We have not required that the employer's decision-making process under scrutiny "be optimal or that it left no stone unturned. Rather, the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action." . . .Furthermore, "the falsity of [a] [d]efendant's reason for terminating [a] plaintiff cannot establish pretext as a matter of law" under the honest belief rule. . . .. As long as the employer held an honest belief in its proffered reason, "the employee cannot establish pretext even if the employer's reason is ultimately found to be mistaken, foolish, trivial, or baseless." . . ..
An employer's invocation of the honest belief rule does not automatically shield it, because the employee must be afforded the opportunity to produce evidence to the contrary, such as an error on the part of the employer that is "too obvious to be unintentional."
The plaintiff pointed out a 28-year career without any disciplinary actions and challenged the quality of the employer's investigation and pointed out how it overlooked undisputed medical evidence in his favor. However, the Court's majority found that the employer's investigation was not required to be perfect, or even optimal.
[A]n "optimal" investigation – i.e., interviewing the employee and some or all of his witnesses – is not a prerequisite to application of the honest belief rule.
. . . .
The determinative question is not whether [the employee] actually committed fraud, but whether [the employer] reasonably and honestly believed that he did. . . .
CBT never disputed that Seeger suffered from a herniated disc and sciatica. Yet Seeger's reports of excruciating pain on September 13, his inability to stand for more than thirty minutes on September 17, his difficulty ambulating on September 19, and Dr. Grainger's communication to Greenwald on that very same day that Seeger was unable to perform sedentary light-duty work, stood in stark contrast to Seeger's seemingly unimpaired appearance at Oktoberfest on September 23. While at Oktoberfest, he spoke to co-workers and drank a beer or two without any indication that his movements were painful or restricted. Seeger's ability to walk unaided for ten blocks and remain at the crowded festival for ninety minutes understandably raised a red flag for CBT, giving it reason to suspect that Seeger was misrepresenting his medical condition in an attempt to defraud CBT's paid-leave policy.
CBT's investigation was thorough. It interviewed Caplinger and Adkins and took their formal statements. Simpson, who was unaware of Seeger's FMLA leave of absence until Wilson's report reached her desk, scrutinized Seeger's medical records with the assistance of Greenwald, whose long-term experience as a nurse allowed her to put the records into context. Simpson reasonably requested documentation from Seeger and, before concluding her inquiry, gave him the opportunity to submit additional relevant information. While Dr. Grainger's October 31 brief letter to CBT contained general comments about Seeger's inability to work an eight-hour day, it did not confirm that Seeger was unable to work a light-duty schedule. Simpson perused the medical records from Dr. Grainger, the Mayfield Clinic, the Kentucky Diagnosis Center which performed the MRI, and the physical therapists. She testified that she had all of the medical facts she needed, and therefore had no need to contact any of Seeger's medical providers for clarification of any points.
All in all, the record reflects that CBT made a reasonably informed and considered decision before terminating Seeger. That Seeger or the court might have come to a different conclusion if they had conducted the investigation is immaterial. Seeger has not refuted CBT's honest belief that the inconsistent facts before it were the result of fraud on his part, and his claim that his termination was a pretext for discrimination necessarily fails. We therefore conclude that the district court did not err in granting summary judgment in CBT's favor.
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.
