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.
