A company did not retaliate against an employee who had taken intermittent leave or interfere with her rights under the Family Medical Leave Act when it fired the employee for fraud following an investigation, the Sixth Circuit Court of Appeals has found. Jaszczyszyn v. Advantage Health Physician Network, No. 11-1697 (6th Cir. Nov. 7, 2012) (unpublished). The Sixth Circuit has jurisdiction over Michigan, Ohio, Kentucky and Tennessee.
The plaintiff, Sara Jaszczyszyn, began working for Advantage Health Physician Network in January 2008 as a part-time clerical employee after she was cleared to work without restriction following an examination. She had reported a prior back injury related to a car accident years earlier, which required two surgeries, but stated she had not experienced recent back problems. She later was promoted to a full-time position in the Human Resources Department, and then was transferred to work as a customer service representative.
Nine months after the transfer, the plaintiff complained to her treating physician of worsening back pain. Her doctor submitted a work release form to the company, stating the plaintiff was “completely incapacitated” for an eight-day period (August 31 to September 7). The company advised the plaintiff to apply for FMLA leave and provided her the necessary paperwork, including the rules governing leave.
The plaintiff returned to work on September 8. The following day, her physician submitted an incomplete Certification of Health Care Provider form to the company, indicating the plaintiff was having four “flare ups” per month and would be unable to perform all of her job duties when the flare ups occurred. Her employer approved the request for intermittent FMLA leave. The plaintiff, thereafter, began treating the leave as continuous rather than intermittent. She had to be reminded repeatedly to contact her supervisor if she was unable to come to work and to turn in the required paperwork.
After seeing the plaintiff on September 22, the plaintiff’s physician completed an additional Certification, projecting the plaintiff would be disabled from September 10 to October 5. The physician later completed and signed a work release form indicating the plaintiff was completely incapacitated for an additional three weeks (October 5 to October 26).
On October 3, the plaintiff spent eight hours at a local festival with friends. She later posted pictures on her Facebook page showing her at the festival. Thereafter, the plaintiff stated in voicemail messages to her supervisor that she would not be at work on Monday (October 5) because she was in pain. The supervisor and several of the plaintiff’s co-workers were plaintiff’s “friends” on Facebook. One co-worker pointed out the pictures to the plaintiff’s supervisor. The plaintiff’s supervisor then notified her own supervisor, sharing some of the photos. After consulting with the employer’s counsel, an investigation was conducted that included an interview with the plaintiff. She was unable to give a reasonable explanation for the discrepancy between her request for leave and her conduct at the festival. The decision was made to terminate plaintiff’s employment for fraud.
The plaintiff sued the employer, asserting two claims: FMLA interference and FMLA retaliation. The trial court granted the employer’s request for summary judgment, agreeing that there was no evidence that anyone at the company had a retaliatory motive and that the employer had an “honest suspicion” the plaintiff was abusing her leave. The plaintiff appealed.
FMLA Retaliation/Interference Standards
Under the FMLA, eligible employees are entitled to a total of 12 weeks of leave during any 12-month period for, among other things, the employee’s own “serious health condition that makes the employee unable to perform the functions” of his or her job. See 29 U.S.C. §2612(a)(1)(D). Furthermore, for violations of the FMLA, the law provides employees with two theories of recovery: interference and retaliation (based on 29 U.S.C. §2615(a)(1) and §2615(a)(2), respectively).
First, the appeals court determined that, of the elements required to state a prima facie claim under both theories of recovery, only the last two prongs of each were at issue: for the interference claim, “[whether] the defendant denied [her] FMLA benefits or interfered with FMLA rights to which [s]he was entitled,” and for the retaliation claim, “[whether] there was a causal connection between the protected FMLA activity and the adverse employment action.”
The employer’s intent to discriminate is required to prove a claim under the retaliation theory, but not under the interference theory. The Court, however, also rejected a strict liability standard for interference cases, stating, “[I]nterference with an employee’s FMLA rights does not constitute a violation if the employee has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.” Edgar v. JAC Prods., Inc., 443 F. 3d 501, 507-08 (6th Cir. 2006).
Next, the appeals court determined that FMLA interference claims were properly analyzed under the McDonnell Douglas burden-shifting test, at least where, as in this case, the employer had proffered a “legitimate reason unrelated to the exercise of FMLA rights for terminating the employee.”
Application of “Honest Belief” Rule
The Court of Appeals next considered whether an employer’s “honest belief” in the justification for its action can defeat an FMLA interference claim. The Court stated, “[S]o long as the employer honestly believed in the proffered [lawful] reason given for its employment action, the employee cannot establish pretext even if the employer’s reason is ultimately found to be mistaken, foolish, trivial, or baseless.” Courts apply the “honest belief” rule in considering whether a plaintiff has met her burden of establishing that the reason proffered by the employer for the adverse employment action is pretextual. The Court found it was unclear under Sixth Circuit precedent whether the “honest belief” rule applied to interference claims. However, the Court found it unnecessary to resolve the issue, since it concluded the plaintiff had received all of the leave she was entitled to receive at the time the investigation into her conduct began, and therefore, could not state a claim for interference with FMLA rights. The Court found the employer had not ruled on the plaintiff’s second leave request when she was terminated. The Court further noted the plaintiff’s interference claim related only to the employer’s failure to reinstate her at the end of her FMLA leave. The employer had approved the first leave request and paid her for all time taken off. Finally, the Court found the plaintiff did not return to work at the end of her leave because, she claimed, she was too sick to return, not because of a denial of reinstatement.
The Court then applied the “honest belief” rule and rejected the plaintiff’s retaliation claim as well. It found the employer’s proffered reason for the termination decision, i.e., FMLA fraud, not pretextual. The employer had an “honest belief” FMLA fraud, a non-retaliatory reason for discharge. The Court noted the investigation was adequate, turning in large part on the plaintiff’s behavior at the investigative interview.
Finally, the Court rejected the plaintiff’s assertion that the termination notice filled out by her supervisor (which stated absenteeism as the basis for termination) should be regarded as direct evidence. The Court noted the supervisor was not responsible for the termination decision and “absenteeism” was an accurate characterization of the plaintiff’s behavior.