Background

In yet another case that demonstrates the opportunities and pitfalls of social media in the workplace, the Sixth Circuit recently held that an employer did not violate the Family and Medical Leave Act (the FMLA) when it terminated an employee who claimed she was incapacitated due to a medical condition, when Facebook photos showed that she was attending a festival while she was on medical leave. Jaszczyszyn v. Advantage Health Physician Network, No. 11-1697, 2012 WL 5416616 (6th Cir. Nov. 7, 2012).

Advantage Health Physician Network (“Advantage”) hired Sara Jaszczyszyn to work part-time in its Staffing Center Float Pool. The offer of employment was contingent upon Jaszczyszyn passing a physical, during which she reported that she had injured her back in a car accident nine years earlier and had undergone two surgeries. She claimed, however, that she had experienced no recent problems and was cleared for work at Advantage.

Five months into Jaszczyszyn’s employment, Advantage promoted her to a full-time position as a customer service representative in its Human Resources Department. Jaszczyszyn’s primary role involved talking daily with customers using a wireless headset. This job required sitting at a desk for extended periods of time in order to access customer information, although she was permitted to stand as much as needed.

Nine months later, Jaszczyszyn began complaining of back pain and requested a reevaluation from her doctor. Although subsequent x-rays showed the site of her prior surgery to be stable and unchanged, the MRI and CT scan showed mild degenerative changes in the lower lumbar spine. On August 31, 2009, Jaszczyszyn requested time off because of her back, noting on her work release form that she would be “completely incapacitated” from August 31 through September 7.

The work release form was reviewed by a number of administrators at Advantage. An HR representative called Jaszczyszyn to let her know that, because she did not have enough paid time off to cover her absences, she should file for leave under the FMLA in order to protect her job. The HR representative then sent a number of documents to Jaszczyszyn via email related to FMLA leave, one of which outlined Advantage’s policies and procedures, including the conditions Jaszczyszyn was required to meet in order to qualify for FMLA leave.

Through that document, Advantage notified Jaszczyszyn that, after a preliminary review, it had determined that Jaszczyszyn met two of the three requirements for FMLA leave — and that Advantage only needed her to provide a “Certification of Health Care Provider” to show that she suffered from a “serious health condition.” The email noted that if she did not return the Certification within 15 days, her leave could be delayed or denied. It also stated that she needed to maintain regular contact with her supervisor and that even if she was to be on FMLA leave, she still had to abide by the Company’s attendance policy and inform her supervisor of any planned absences.

The following day, Jaszczyszyn responded to Advantage’s email, stating that she planned to return to work on September 8, which she did. On September 9, Jaszczyszyn’s doctor submitted paperwork stating that she did not require extended leave, but would instead need additional leave on an ad hoc basis if she had any flare-ups. He advised that Jaszczyszyn was experiencing approximately four flare-ups per month, each of which could last anywhere from a few hours to a few days.

Over the next month, Jaszczyszyn missed several days of work, sometimes complying with the company’s attendance policy and sometimes not. On September 30, Jaszczyszyn submitted another form from her doctor stating that she was going to be completely incapacitated for three weeks, from October 5 through October 26 — even though she failed to directly communicate this information to her supervisor.

On October 3, Jaszczyszyn attended “Pulaski Days,” a local heritage festival with a group of friends. One friend posted multiple pictures of Jaszczyszyn on her Facebook page attending three different Polish Halls over an eight-hour time span. Over that same weekend, Jaszczyszyn left Advantage multiple voicemails indicating that she was in pain and would not be attending work on Monday morning.

Because Jaszczyszyn was Facebook “friends” with several of her co-workers, the posted pictures were available for them to see. One of Jaszczyszyn’s co-workers brought the pictures to her supervisor’s attention. Jaszczyszyn’s co-workers said that they felt betrayed or duped by seeing Jaszczyszyn out “partying” on Facebook even as she was repeatedly absent from work due to medical issues. Jaszczyszyn’s supervisor reported the matter to her own supervisor, and a formal investigation was launched by Advantage’s attorneys.

On October 8, the parties, at the request of Advantage, met to discuss the situation.  During that meeting, the parties discussed Jaszczyszyn’s lack of communication (in violation of company policy), and her request for extension of her FMLA leave through October 26. They also discussed the job requirements and the injuries that Jaszczyszyn claimed prevented her from working, and asked her if she understood that Advantage took fraud very seriously, which she acknowledged. Thereafter, the parties discussed the pictures from Facebook and asked Jaszczyszyn to reconcile the pictures with the fact that she claimed she was completely incapacitated and could not work. Jaszczyszyn lacked any rational explanation for her absence and was terminated.

Six months later, Jaszczyszyn initiated an action in the US District Court for the Western District of Michigan, alleging that she was terminated in retaliation for exercising her rights under FMLA. Advantage moved for summary judgment on the grounds that there was no evidence showing that anyone at Advantage had any retaliatory motive, and that, regardless, Jaszczyszyn’s supervisors had an honest suspicion that she was abusing her leave. The district court granted Advantage’s motion and Jaszczyszyn appealed.

The Sixth Circuit Decision

The Sixth Circuit affirmed the district court’s grant of summary judgment in favor of Advantage. The court began by explaining the two theories of recovery under the FMLA: the “interference” or “entitlement” theory, grounded in 29 U.S.C. § 2615(a)(1), and the “retaliation” or “discrimination” theory, grounded in 29 U.S.C. § 2615(a)(2).

For an interference claim, a plaintiff must establish that “(1) [s]he was an eligible employee, (2) defendant was a covered employer, (3) [s]he was entitled to leave under the FMLA, (4) [s]he gave defendant notice of [her] intent to take leave, and (5) the defendant denied [her] FMLA benefits or interfered with FMLA rights to which [s]he was entitled.”

For a retaliation claim, a plaintiff must establish that: “(1) she was engaged in an activity protected by the FMLA; (2) the employer knew that she was exercising her rights under the FMLA; (3) after learning of the employee’s exercise of FMLA rights, the employer took an employment action adverse to her; and (4) there was a causal connection between the protected FMLA activity and the adverse employment action.”

As to the interference claim, the court held that, because Jaszczyszyn was granted her first request for leave and paid for all of the time she had taken off prior to her termination the district court correctly concluded that she could not sustain the claim.

With respect to the retaliation claim, the court concluded that Jaszczyszyn failed to prove the last prong of the test, i.e., that a causal connection existed between the protected FMLA activity and the adverse employment action. The court found that Jaszczyszyn had introduced “little or no evidence” on this point. Instead, the court held that Advantage rightfully considered workplace FMLA fraud to be a serious issue, and its termination of Jaszczyszyn because of her alleged dishonesty constituted a non-retaliatory basis for her discharge. Indeed, Jaszczyszyn presented no evidence to refute the fact that Advantage had an honest belief that her claimed medical condition was at odds with the pictures posted on her own Facebook page. Thus, as a result of her apparently fraudulent behavior, the court upheld the district court’s grant of summary judgment to Advantage on Jaszczyszyn’s FMLA retaliation claim.

Implications

Some employers might conclude from this case that they should review the Facebook and other social media sites of their employees, particularly those on medical leave, to determine if any fraud is occurring. Although it worked to the advantage of the employer in this case, in some situations it might backfire. Thus, employers should consult with their counsel on the appropriate steps to take.