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 (6th 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.
