The U.S. Court of Appeals for the Seventh Circuit, in Vail v. Raybestos Prods. Co., recently found that an employer did not violate the Family and Medical Leave Act (FMLA) when it fired an employee it suspected of abusing intermittent FMLA leave.

In Vail, Diana Vail was a bargaining unit employee who worked third shift (10:45 p.m.-6:45 a.m.) at the employer’s manufacturing plant. Vail notified Raybestos that she had migraine headaches and requested intermittent FMLA leave. The company approved her request for intermittent leave and agreed to a procedure in which Vail would contact her supervisor prior to her shift if she was unable to report to work due to a migraine.

The employer noticed that Vail’s use of intermittent leave occurred most often during the summer months. It also was aware that she worked part-time for her husband’s lawn mowing business. The employer suspected that Vail was abusing her use of FMLA leave and it hired an off-duty police officer to follow Vail. Vail visited her doctor, who made a change in her medication and advised her not to work for 24 hours. She notified her supervisor and was granted intermittent leave. The following morning, she asked the doctor to provide a note to her employer explaining the reason for her absence. Shortly thereafter, the investigator observed Vail mowing the grounds of a cemetery served by her husband’s business and he notified the employer of this activity. The employer then received the doctor’s note, which it believed was a request for her to miss her upcoming shift that evening.

Under the terms of the collective bargaining unit between the union and Raybestos, employees were prohibited from accepting other employment or providing physical labor for another business. Raybestos concluded that Vail had violated the contract and terminated her employment. The union and Vail did not grieve the decision. Instead, Vail sued her employer in federal court alleging, among other things, that Raybestos had interfered with her right to take FMLA leave. The district court granted the employer’s motion for summary judgment and Vail appealed.

The court was not persuaded with Vail’s argument that she was not in a leave status when she was observed working since her shift had ended several hours earlier. Instead, the court found that in order to prevail on her claim that her employer had interfered with her rights under the FMLA, she had to establish that (1) she was eligible for FMLA leave; (2) she took the leave “for the intended purpose of the leave” and (3) Raybestos deprived her of an employment benefit as a result of the leave.

The court noted that an employer can defeat an interference claim if it can establish that the employee did not use the FMLA leave for its intended purpose. In that circumstance, the employee no longer has a right to reinstatement and the employer’s decision to discharge the employee would not violate the FMLA. The court found that Raybestos had an honest belief that Vail was not using the leave for its intended purpose it affirmed summary judgment.