The “Honest Belief” defense continues to be a strong defense for employers to use in cases where they terminate an employee for perceived abuses of FMLA leave. On 1/3/17, the Third Circuit Court of Appeals upheld summary judgment for an employer (on both FMLA and ADA claims) who terminated an employee after discovering that he had claimed FMLA intermittent leave for dates on which he had been arrested for DUI and attended court relating to the criminal DUI charges. The case is Capps v. Mondelez Global, LLC (3rd Cir. 1/30/17).
No FMLA Retaliation. As to FMLA retaliation, the court concluded that where an employer provides evidence that the reason for the adverse employment action taken by the employee was an honest belief that the employee was misusing the FMLA leave, this constitutes a legitimate nondiscriminatory reason for the discharge. The court cited supporting cases from the 7th, 8th and 10th Circuits. The court acknowledged that the 6th Circuit had adopted a modified, more stringent version of the honest belief rule, and required employers to show not only that a belief was honestly held but also that the belief was “reasonably based on particularized facts.” The court in Capps declined to adopt this more stringent standard, and instead said that it did not matter whether or not the belief was incorrect or mistaken so long as it was honestly held.
In its discussion of whether there was evidence of retaliation, the court noted that the employee had been taking FMLA leave for many years and that there was no indicating that the employer had ever denied his requests for such leave. The court also said that there was no evidence of any “animus” by the employer toward the employee, and that it was not until one of the managers because aware of a newspaper article discussing his DUI arrest and conviction that the employer began to investigate his attendance record.
No FMLA Interference. The court likewise rejected the employee’s FMLA interference claim on the ground that the employee was unable to show he was denied a benefit to which he was entitled, noting that the employee’s request for FMLA leave was approved, the employee took the leave and was reinstated to his job at the end of the leave.
No ADA liability. The employee argued that the employer violated the ADA because it did not accommodate his disability by allowing him to take intermittent leaves and that his request for FMLA leave should be considered a request for leave under the ADA as a reasonable accommodation. The court recognized that a request for FMLA leave may qualify as an ADA accommodation request but rejected the employee’s claims because the employee was granted the leave he sought.
Lessons for Employers? It is not unusual for employers to doubt whether or not an employee is abusing FMLA leave. This case indicates that if an employer honestly believes that the employee is abusing the leave, termination of employment will not support an FMLA retaliation claim – even if the belief is incorrect. Neverthless, this case should not be taken as a green light for employers to terminate employees whom they suspect of FMLA abuse. Employers should make sure that they have some objective evidence to support the belief and that they give the employee an opportunity to explain the issues before making a decision. Employers also may want to consider allowing the employee to complete a leave and return to work – this may help avoid an FMLA interference claim. It is too complicated to discuss in this mini-article but some courts have held that there are different standards of proof for FMLA interference and retaliation claims, with the employer having the burden of proof on an interference claim and an employee having the burden of proof on a retaliation claim.
FMLA request may be a request for an ADA accommodation. Employers need to bear in mind that a request for FMLA leave may very well be found to be a request for an ADA accommodation as well, triggering the obligation to engage in the good faith interactive process. If an employee is not eligible for FMLA leave (for example because of length of employment, employer size or exhaustion of leave), employers are well-advised to consider the FMLA leave request to be a request for an ADA accommodation.