Jaszczyszyn v. Advantage Health Physician Network, (6th Cir. Nov 7, 2012) involves three seemingly-unrelated topics: social media, Polish festivals, and the honest belief defense to FMLA claims. When combined, however, they turn into a fun set of facts that the Sixth Circuit recently got to chew on.
Advantage Health Physician Network ("Advantage") hired Sara Jaszczyszyn ("Plaintiff") to work at its Staffing Center Float Pool on a part-time basis. She eventually was promoted to a full-time customer service representative. Nine months in, Plaintiff began complaining of back pain, which was the result of an old accident, and asked for time off work from August 31 to September 7 because she would be "completely incapacitated". Because Plaintiff did not have enough paid time off under Advantage's attendance policy to cover her absences, her leave was considered FMLA leave to protect her job. As such, Plaintiff was asked to provide a "Certification of Health Care Provider" to show she suffered from a serious medical condition, as required under the FMLA. She also was reminded that she was to comply with Advantage's attendance policy, which expressly provided she was to inform her supervisor of any planned absences.
Plaintiff returned to work on September 8, and submitted paperwork from her doctor that she would need intermittent leave for flare ups, which were estimated to occur four times a month and last a few hours to a few days. While the Certification indicated the leave was to be intermittent leave for flare ups, Plaintiff treated the leave as continuous, open-ended, effective immediately leave and never returned to work after September 9th. Advantage reminded Plaintiff repeatedly that she had to inform her supervisor every day that she was in too much pain to work. Sometimes she gave notice and sometime she did not. When she did, it was typically through a voicemail left late at night or over the weekend when no one was around. There were also issues with Plaintiff turning in required paperwork. Despite these issues, Advantage treated Plaintiff's absences as being taken pursuant to intermittent FMLA. Because there had been some confusion with Plaintiff's leave entitlement, Plaintiff went to the doctor on September 22 and her doctor completed the Health Care Provider Certification form and put Plaintiff on leave from September 10 through October 5. Just eight days later, however, Plaintiff's doctor completed a work release form, as opposed to a Health Care Provider Certification form, and advised that Plaintiff was completely incapacitated for another three weeks, from October 5 through October 26. Advantage approved the September 10 through October 5 leave, but not the October 5 through October 26 leave extension.
The Fun Facts
So here's where it gets interesting. On October 3, while on her approved-FMLA leave, Plaintiff attended Pulaski Days, a Polish festival in Grand Rapids, Michigan with some friends. Plaintiff posted a number of pictures of herself, some of which showed her drinking, smoking and having a grand old time engaging in a pub crawl, on her Facebook page. Not too shabby for a "completely incapacitated" gal! Even better, that same weekend, Plaintiff left numerous voicemail messages with Advantage letting Advantage know how much pain she was in and that she would not be at work Monday morning. But wait, the story gets better: Plaintiff was Facebook "friends" with several of her Advantage co-workers, including her supervisor for whom she left a voicemail message indicating she was too sick to come to work.
After one of Plaintiff's co-workers/Facebook "friends" brought the matter to her supervisor's attention, the supervisor, noting that other co-workers felt "betrayed or duped" by Plaintiff, reviewed the Facebook photos. Advantage then conducted an investigation. It reviewed Plaintiff's medical certifications and eventually confronted Plaintiff on October 8. During the meeting Advantage discussed Plaintiff's communications issues, including her request for extended leave through October 26 without discussing it with her supervisor; her job requirements; and the scope of her injuries that prevented her from being able to perform her job. Before confronting her with her Facebook pictures, however, Advantage asked Plaintiff whether she knew how seriously Advantage took fraud, and Plaintiff responded that she did. Ah ... to be a fly on the wall the rest of that meeting, where Advantage discussed the Facebook pictures and Plaintiff's time at the festival. Not surprisingly, Plaintiff disagreed with Advantage's characterization of the pictures. (You can judge for yourself. Some are available here). She also defended attending the festival by arguing that no one had told her it was prohibited. When asked to explain the discrepancy between her claim of complete incapacitation and her activity in the photos, Plaintiff did not have a response and was often silent, occasionally saying that she was in pain at the festival and just was not showing it. Advantage terminated Plaintiff for fraud.
In turn, Plaintiff sued Advantage for retaliation and interference under the FMLA. Advantage moved for summary judgment arguing there was no evidence showing anyone at Advantage had a retaliatory motive and because it had an "honest suspicion" Plaintiff was abusing her FMLA leave. The district court granted summary judgment.
The Sixth Circuit's Decision
The Sixth Circuit affirmed. The key for the Court in disposing of the retaliation claim was the honest belief rule. The "honest belief" rule provides, "so long as the employer honestly believed in the proffered reason given for its employment action, the employee establish pretext even if the employer's reason is ultimately found to be mistaken, foolish, trivial, or baseless." Here, the Court held that Plaintiff failed refute Advantage’s honest belief that her behavior in the photos was inconsistent with her claims of total disability.
The more difficult question, however, is whether the honest defense rule applies in FMLA interference claims. While the Sixth Circuit raised the issue, it skirted it, and here's how.
The Court first noted that the requisite proofs in interference versus retaliation cases differ. The key element in an interference claim is whether “the defendant denied FMLA benefits or interfered with FMLA rights to which [s]he was entitled.” The key issue in a retaliation claim is whether "there was a causal connection between the protected FMLA activity and the adverse employment action.” The difference is that the retaliation case requires proof of employer intent to retaliate while the issue of intent is irrelevant in the interference context. The Court, however, rejected the notion that interference cases are strict liability cases, noting that "interference with an employee's FMLA rights does not violate the FMLA if the employer "has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct." The Court, however, did not reach any conclusion on whether this carve-out precluded Plaintiff's FMLA interference claim.
The Court then jumped into its analysis of whether the honest belief rule applies in interference cases, noting that its prior decision in Donald v. Sybra, Inc., which we blogged on here, should not be read as either adopting or rejecting the honest belief rule in FMLA interference claims. With that, however, the Court failed to go further and decide if the honest belief rule in fact does apply to FMLA interference cases and/or to further explain what the legitimate, unrelated reason carve-out means in application to interference claims.
Instead, the Court ultimately settled on another of its decisions from earlier this year, Seeger v. Cincinnati Bell Telephone Co., which we blogged on here, as the one that provided Advantage's defense to Plaintiff's interference claim. In Seeger, as in this case, an employee sued after he was terminated for attending Oktoberfest while on FMLA leave. The Court found Seeger instructive because, like the facts in this case, the employee received all the FMLA leave to which the employee was entitled and, therefore, there could be no interference.
Because Plaintiff limited her interference claim to Advantage's failure to reinstate her at the end of her FMLA-approved leave and never argued her termination interfered with her requested extension of leave, the Court never had to address the "honest belief. Had Plaintiff argued her termination was in connection with her second request for leave, instead of arguing it was because Advantage failed to reinstate her after her first approved leave, the Court probably would have resolved the issue.
As for Plaintiff's retaliation claim, the Court did what you expect it would given that Advantage acted appropriately. The Court applied the “honest belief” rule and found that Advantage's proffered reason for terminating Plaintiff, i.e., FMLA fraud, was not pretextual. The Court's decision focused in large part on Advantage's investigation and Plaintiff's conduct during the investigation interview.
- Use the Honest-Belief Defense, and Make Sure You Do It Right By Performing a Thorough Investigation. This case reinforces an employer's right to rely on the "honest belief" defense, especially in response to FMLA retaliation claims. It remains to be seen whether the "honest belief" defense will provide a defense to FMLA interference cases, but it is not likely given the Court's footnote, "[t]he honest rule is inextricably linked with questions of discriminatory intent, and as the Donald court noted, bringing that rule into the interference realm would further erode the boundaries between the interference and retaliation claims."
- Use Your Resources – all of them. Employers should use their resources to determine if their employees are abusing FMLA leave or taking leave fraudulently. Social media sites, like Facebook and Twitter, are a treasure trove of information, if publicly available. More often than not, if your employee is gaming the system, one of his or her co-worker/Facebook "friends" will turn the employee in to human resources. So keep your ears open.
- Conduct a Thorough Investigation. This case also highlights the importance of a thorough investigation. Had the employer been rash and automatically terminated Plaintiff after seeing the Facebook photos, the employer's honest belief defense may not have been given as much weight by the Court. Instead, the employer thoroughly reviewed the record, which included Plaintiff's medical certifications, its policy against fraud, and gave Plaintiff a sufficient opportunity to clarify the pictures. This played significantly in the Court decision to allow the use of the honest belief defense to bar Plaintiff's retaliation claim.
- Be Aware of the "Legitimate, Unrelated Reason" Carve-Out When Terminating An Employee Who Has Not Yet Used All Their Certified Leave. In this case, the Sixth Circuit endorsed an employer's reliance on a "legitimate, unrelated reason" as a defense to FMLA interference claims. Of course, however, the court will also be on the look out for evidence that the claimed unrelated reason is pretextual, and several question regarding this defense remain open: (1) what does "legitimate, unrelated reason" mean; (2) how does it differ in application from the honest belief rule; and (3) how can employers use it to terminate an employee mid-leave or who has not taken all their leave entitlement without FMLA-interference liability.
- Employees, Stay Away from Festivals When You Are On FMLA Leave. While it would appear that the Sixth Circuit's recent attention to the honest belief defense is focused on employees who flaunt their good condition in public, specifically at public festivals, it is likely that the Sixth Circuit would find the honest belief defense in other scenarios, but employees, you have been warned.