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 (6th 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 (7th 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.
