Why it matters

A Texas federal court reaffirmed an employer can terminate an employee who is out on Family and Medical Leave Act (FMLA) leave but fails to communicate with the employer, and threw out a plaintiff’s charge of interference and retaliation under the statute. Struggling with her workload, a marketing director was put on a performance improvement plan. Upset, the employee had a breakdown and requested short-term leave under the statute. The employer granted the leave. A few days later, while still on leave, the employee attended a Beyoncé concert in the employer’s corporate box. A human resources employee then reached out with phone calls and emails to determine why the worker was well enough to attend a concert but not to work. When the employee failed to respond by a deadline, she was terminated and then filed a lawsuit alleging violations of the FMLA. The court granted the defendant’s motion to dismiss, finding that not only did the employer have an honest suspicion that the plaintiff was abusing her leave, but also that it was fair to conclude she was abusing her leave when she failed to respond to multiple inquiries.

Detailed discussion

In 2002, Michelle Jackson began working for BNSF Railway Co. After more than a decade, she accepted a position as a marketing manager and relocated to Texas. She struggled with the increased workload and limited her travel in an attempt to increase her proficiency in the new position.

Just a month later, however, her supervisor put her on a performance improvement plan (PIP). Unhappy with the plan, Jackson suffered a breakdown a few days later and notified her supervisor that she was “not well to return back to work,” requesting short-term disability. Over the next week, the employer reached out on multiple occasions about administrative issues, such as a delinquent charge on the company credit card and setting up an out-of-office response for Jackson’s email and phone.

One week after her breakdown, while still on leave, Jackson attended a Beyoncé concert in the employer’s suite. When the company found out, a human resources (HR) representative reached out to Jackson to discuss why she thought it was appropriate to attend the concert when she was not working.

Jackson—who had not responded to several of the earlier administrative messages—responded that she had not been released by her doctor to meet and that as soon as she was cleared, she would contact her employer. The HR representative replied with a request to speak with Jackson by the close of business, cautioning her that she could be terminated if she failed to do so.

When she did not meet the deadline, BNSF terminated her employment. As the reasons for her termination, the employer pointed to Jackson’s poor work performance, her attendance at the concert while being off work and her refusal to communicate when requested to explain her attendance at the concert.

Jackson filed suit under the Family and Medical Leave Act (FMLA), alleging the employer interfered with the exercise of her rights under the statute and retaliated against her for taking leave.

The employer moved to dismiss, arguing that the plaintiff was terminated for legitimate business reasons. U.S. District Judge John McBryde agreed, granting the motion. Employees who request or take leave under the FMLA are not entitled to any greater rights or benefits than they would be entitled to had they not requested or taken leave, the court said.

“Here, the summary judgment evidence is that defendant suspected plaintiff of committing fraud, that is, claiming a benefit to which she was not entitled,” the court wrote. “Defendant attempted to investigate, but plaintiff refused to cooperate, leading to her termination. Defendant’s honest suspicion of abuse is sufficient to defeat plaintiff’s substantive FMLA rights.”

As for Jackson’s retaliation claim, even assuming she could make a prima facie case, the court agreed with the employer that Jackson failed to show that its reason for discharging her was not the true reason for her termination. Her supervisor and the HR representative testified that they believed the plaintiff was abusing her medical leave because she started it shortly after receiving a PIP, attended a Beyoncé concert within days in the defendant’s luxury suite, and then refused to discuss her reasons for attending the concert when she claimed to be too ill to work.

Even if the employer was incorrect in its assessment, the belief “constitutes a legitimate, nondiscriminatory reason for the termination,” Judge McBryde wrote. “Plaintiff has not come forward with summary judgment evidence to show that this was pretext for retaliation.”

The court granted the employer’s motion to dismiss.

To view the memorandum opinion and order in Jackson v. BNSF Railway Company, click here.