Sixth Circuit Rejects FMLA Leave to Rest Shoulder (by playing golf) When FMLA Use was Approved Only for Incapacitating Flare-Ups Which Prevented Plaintiff from Working

Last week, the Sixth Circuit affirmed an employer’s summary judgment on an FMLA retaliation claim where the employee was fired after being observed on two occasions playing golf when he had called off work under the FMLA due to a shoulder disability.  LaBelle v. Cleveland Cliffs, Inc., No. 18-2444 (6^th Cir. 9-13-19).  When the employer approved his intermittent leave request, it limited his FMLA use to the monthly “flare-ups” of his shoulder condition and four medical appointments each year.  However, the plaintiff was stacking his FMLA leave in between or following pre-scheduled vacation time, he says, to give his shoulder a rest.  The employer concluded that if he could play golf, he could work.  The FMLA leave was approved for “flare-ups” that incapacitated him, not for rest by playing golf.  The Court agreed and held that the employer did not unlawfully retaliate in firing the employee for FMLA abuse and did not even need to rely on an honest belief defense.

According to the Court’s opinion, the employee suffered bone deterioration from avascular necrosis and had already had hip replacement surgery in 2012.  The condition then began affecting his shoulders, causing him to suffer constant pain.  After receiving disciplinary counselling for attendance in 2016, he explained that he was missing work because of shoulder pain and was directed to seek FMLA leave.  His first FMLA request was denied because he failed to show the necessary incapacity or regular medical treatment for a chronic condition.   His next request from a different physician was granted for intermittent monthly three-day flare-ups and for four medical appointments per year.  


Over the next year, the employer then noticed that the plaintiff suspiciously took his FMLA leave in between or immediately following pre-scheduled vacation and assigned a private investigator to observe him on FMLA days, which suspiciously coincided with the plaintiff’s Tuesday golf league.

The videos showed that the plaintiff’s golf swing was unimpaired without any sign of pain or discomfort.  The employer provided the plaintiff with an opportunity to defend himself from what appeared to be FMLA abuse.   He explained that he was in constant pain and he thought that he could take the FMLA whenever he wanted and so he usually attached them to a weekend or other time off in order to give his shoulders the maximum rest from his repetitive duties. He claimed that golf was not nearly as hard on his shoulders as his job.  

The employer concluded that if the plaintiff was well enough to golf, he was well enough to work and terminated his employment.  He pursued union arbitration, but lost.  He then filed his federal lawsuit, alleging both FMLA interference and FMLA retaliation.  


The Court agreed that he had no interference claim because the employer permitted him to take FMLA leave and only fired him after he returned to work.  As for his retaliation claim, the plaintiff pointed to emails where the HR employees expressed hostility to FMLA use and desire to terminate some slackers.   However, in attempting to prove pretext, he did not argue that his golfing was not the actual reason for his termination.  Instead, he argued that his golfing did not constitute FMLA abuse – i.e., that the employer’s articulated reason for his termination had no basis in fact.   Sadly for him, the Court agreed with the employer that his FMLA use had only been approved for medical appointments and flare-ups, not for rest.

But occasional rest to alleviate low-level background pain is not what his FMLA leave was for.  Thus, as the arbitrator put it, “[t]here is no doubt that [LaBelle] did not use his FMLA leave in accordance with the restrictions imposed by [his doctor], or in accordance with the purposes of the law.”  . . .  If LaBelle had constant pain that required occasional long weekends to mitigate, he should have requested FMLA leave for that purpose.   

The Court found that the plaintiff failed his burden of showing that the employer’s reason had no basis in fact.  Accordingly, the employer need not rely on an “honest belief” defense that it honestly believed the plaintiff had abused his FMLA leave even if the golf game constituted rest from his repetitive motion duties. 

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.