According to the Court’s opinion, shortly after the
plaintiff requested FMLA leave, the plaintiff’s co-workers reported their
suspicions and concerns that the plaintiff had not been working all of her
assigned hours, had engaged in personal matters during work time and had failed
to perform assignments. In particular,
one co-worker produced a log of the plaintiff’s arrival and departure times to
demonstrate that she had not been working her assigned hours. Another discovered that the plaintiff had not
even commenced a number of long-term assignments before she left for FMLA leave
and also heard during her FMLA leave that she had been observed engaging in
activities and comments which belied her need for FMLA leave. However, her supervisor refused to confront
her about these issues during her leave and was satisfied when she produced an
updated FMLA medical certification form to support her FMLA request. Nonetheless, he apparently informed Human
Resources that she seemed to be exaggerating her illness when he met with her.
Following her return to work, her co-workers again monitored
her comings and goings and personal activities on work time and requested that
action be taken so that the intern who filled in could be hired instead. Her supervisor finally obtained objective
evidence of her arrivals and departures from the front gate and her computer
log-ins. He confronted her several months after she returned from FMLA leave
with the fact that she claimed to be working for 60 more hours than she had
been physically present on company property.
When she claimed to be working from home for 2.5 hours nightly, he
pointed out that she had only logged into the computer remotely twice in the
past month and one of those had been on a day when she called off sick. She was then terminated for timecard fraud. A jury awarded her over $50,000 in back pay
and over $122,000 for future damages.
The Sixth Circuit reversed on appeal. Although the plaintiff argued that the
defendant employer had been motivated by her FMLA leave, the employer’s
explanation for her termination was supported by the honest belief rule. While the plaintiff contended that the
employer had exaggerated the discrepancy between her time sheet and gate
records, she could not dispute that there remained a significant discrepancy
and her mere disagreement with the result was legally insufficient to disprove
her employer’s honest belief. “This
requires a specific showing that the employer’s decision-making process was not
‘reasonably informed and considered’ and is thus not worthy of belief” or was based on nothing more than
personal opinion. Even a mistake by an
employer does not trump its previous honest belief. “As this court has previously explained, it
does not matter whether the employee actually committed fraud—what matters is
if the employer honestly believed that the employee did.”
Unable to show that the employer’s explanation was unworthy of
belief (and thus pretextual or a cover-up), the plaintiff attempted to show
that it did not actually motivate the employer’s decision. In this case, the plaintiff pointed to the
temporal proximity between her request for FMLA leave and when the employer
began to scrutinize her attendance. The employer
argued that it did not matter what or who triggered the investigation into the
plaintiff’s attendance because employers are permitted to enforce their rules
regardless of who uses FMLA leave. The
Court agreed that “temporal proximity between the start of an investigation into
an employee’s misconduct and the use of FMLA generally does not itself provide
sufficient evidence of animus.”
Nonetheless, “where an employer treats an employee differently after she
asserts her rights . . . than before she had done so, a retaliatory motive may be
inferred.” But, in those cases where retaliatory motive was inferred from
increased scrutiny, there had been evidence of uneven application of the rule
or tolerance of the plaintiff’s poor attendance before taking FMLA leave and
intolerance for it after the FMLA leave. In this case, there was no evidence that the
employer had been aware of the extent of the plaintiff’s malfeasance before she
requested FMLA leave and only disciplined her for it after engaging in
protected conduct. In other words, there
was no evidence that the employer had been aware of the plaintiff’s fraud
before her leave and had ignored it, only to terminate her for fraud after her
FMLA leave.
The plaintiff also argued that the timing of her termination
– just a few months after she returned from FMLA leave – was suspicious. However, for temporal proximity to substitute
for causation, there must be other “independent evidence.” The plaintiff tried to argue that a co-worker’s
emailed plea to her supervisor after she returned from FMLA leave was such
evidence. However, that email focused on
the plaintiff’s fraud and not on her FMLA leave. It was too ambiguous to constitute direct
evidence of retaliation.
The Court also rejected the Plaintiff’s argument that her
co-workers’ attempt to have her fired for timecard fraud during her FMLA leave
was evidence of retaliation, even if her supervisor refused to do so while she
was on FMLA leave because of a fear of litigation.
To permit an inference of retaliatory animus based on a
company’s honest assessment of the potential risk of terminating an employee
would unduly hinder frank employment decisions.
Moreover, there must be a clear line for the purpose of liability
between an employer considering whether an employee may file suit—even though
the employer has a legitimate basis to take an adverse employment action—and an
employer terminating a plaintiff based on the employee’s protected status or
engagement in a protected activity: the
latter results in liability for the employer while the former does not. For that reason, it is legally insufficient
for a jury to reasonably rely on Ingold’s alleged statement that Dow was concerned
that if an ERM was held concerning Hartman, she might file suit.
Finally, the Court rejected the plaintiff’s argument that
her supervisor’s skepticism of her need for FMLA leave was sufficient evidence
of pretext.
First, statements and actions by a decisionmaker “outside of
the decisionmaking process” cannot be the sole basis for proving pretext. . . . Second, even assuming that [her supervisor]
was skeptical of [the plaintiff’s] use of FMLA leave, “[n]othing in the FMLA
prevents employers from ensuring that employees who are on leave from work do
not abuse their leave.” . . .
In fact, just prior to meeting with [the plaintiff, her supervisor] had
received a report from [HR] that [the plaintiff] was engaging in activity
inconsistent with her medical restrictions.
Regardless of [his] skepticism, once [she] provided a note from her
doctor that indicated she needed more rehabilitation, [he] was satisfied. Therefore,
this incident fails to provide any evidence that retaliatory animus motivated [the
employer’s] termination of [the plaintiff].
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 be changed or 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.
