First Oktoberfest, now Pulaski Days.

Recall our post about an employee on FMLA who was terminated after his employer learned about his Oktoberfest festival jaunt. The Sixth Circuit affirmed summary judgment for the employer on the plaintiff’s FMLA retaliation claim, holding that, based on the plaintiff's actions at the festival,  the employer had an “honest belief” that the employee had “over-reported” his restrictions to avoid doing light duty work. Seeger v. Cincinnati Bell Telephone, (6th Cir. May 8, 2012). 

Just six months later, the Sixth Circuit decided a very similar case, this one involving Pulaski Days, a Polish heritage festival. Jaszczyszyn v. Advantage Health Physician Network, (6th Cir. November 7, 2012). There, the plaintiff, while on FMLA, spent eight hours on a Friday at three Polish Halls at the festival and then posted some photos of the day on her Facebook page. That weekend, plaintiff left voicemails for her supervisor, also her Facebook "friend,” stating that she would not be in on Monday because of her pain.

The photos led the employer to investigate. When asked whether her attending the festival was inconsistent with her health care provider’s statement that she was totally incapacitated, plaintiff said that “no one had told her that [attending the festival] was prohibited” and that “she was in pain at the festival and just was not showing it,” the court noted.  The employer terminated the plaintiff’s employment.  In affirming summary judgment for the employer on the plaintiff’s FMLA retaliation claim, the Sixth Circuit again cited the employer’s honest belief—in this case, that plaintiff’s behavior at the festival was inconsistent with her claim of total disability.

Among the lessons for employers from these cases is that the “honest belief” defense is powerful and that employers should investigate thoroughly to develop evidence to support that defense. Another is that festivals seem to be a good place to find evidence of potential FMLA fraud, at least within the Sixth Circuit.