Woman Caught
Shopping on Sick Leave May Sue for
Interference with FMLA Rights
Recently,
an Iowa
federal district court held that an employee who was terminated after her
employer learned she had been shopping on her sick days could proceed with
a claim of interference with Family Medical Leave Act (FMLA) rights. The
case highlights the danger surrounding terminations or other disciplinary
action taken based on alleged misuse of protected leave. Jennings v. Mid-American Energy Company, SD Iowa, No. 3:02-cv-90069 (Sept. 17, 2003), 2003 U.S.
Dist. LEXIS 16388.
Co-Workers Spot Employee Out Shopping at
Times She Called In Sick
Wendy
Jennings worked as a customer service representative for Mid-American
Energy Company (MEC). During the course of her employment, she was
diagnosed with an autoimmune disorder, including rheumatoid arthritis. MEC
and Jennings worked out an arrangement
allowing Jennings
to take intermittent medical leave as necessary for her condition under the
FMLA.
On
Saturday, December 15, 2001, Jennings
went home early from work because of swelling in her hand and because she
felt "achy all over." On the way home from work she stopped to
purchase a gift at Toys-R-Us and ran into two co-workers. She purchased a
gift for a baby shower for a co-worker and attended the co-worker's baby
shower the next afternoon.
On
Monday, December 17, 2001, Jennings
called in sick because she was not feeling well. Later that evening, Jennings was seen
shopping at Super Target. The co-worker who saw her claimed that Jennings had a
"cart full of goodies." The co-worker claimed that Jennings' hair and makeup were "done up" and
that Jennings
"did not look at all like she was sick." Jennings called in sick the next day
also.
Jennings was
subsequently called into a meeting with her supervisors and given the
choice to resign or be terminated for misusing leave time. Jennings chose to resign. She then filed
suit against MEC for interference with intermittent leave under the FMLA
and retaliation.
Requirements for an FMLA Interference Claim
Under
the FMLA, an employee is allowed the right to take leave and the right to
be restored to his or her position of employment upon returning from leave
so long as the leave was taken for its intended purpose. The right to
restoration is not absolute: an employer may refuse to restore the employee
if doing so would confer a right, benefit or position other than that to
which the employee would have been entitled if he or she had not taken the
leave.
To
succeed on an interference with FMLA rights claim, the employee must prove
(1) that he or she was entitled to intermittent leave because of a serious
health condition that left the employee unable to perform the functions of
the position; (2) that he or she took the leave for its intended purpose;
and (3) that, upon returning from the leave, the employer refused to
restore the employee to the position of employment held when the leave
commenced.
Use of Leave Time for Intended Purpose a Question for the Jury
In
this case, MEC argued that it did not interfere with Jennings'
leave rights because Jennings
did not use her leave for its intended purpose. MEC argued that Jennings was not
entitled to be restored to her job because she misused the leave time. Jennings admitted
that she had gone to Toys-R-Us on her way home, but denied her trip to
Super Target.
The
court denied MEC's motion for summary judgment on
the FMLA interference claim and remanded the claim to trial. Agreeing with Jennings, the court
found that a reasonable jury could conclude that she was unable to perform
the essential functions of her job when she went home on December 15, but
was capable of stopping at a store on the way home.
Indeed,
the court stated, "[t]he FMLA contains no requirement that an
individual on intermittent medical leave must immediately return home, shut
the blinds, and emerge only when prepared to return to work. Such a rule
would be both unreasonable and impossible." Instead, whether the
plaintiff was using her leave time for its intended purpose was a question
of fact for the jury.
No Retaliation
As
for Jennings
retaliation claim, however, the court granted MEC summary judgment. In
order to prove retaliation, Jennings
had to show that (1) she exercised her FMLA rights, (2) she suffered an
adverse employment action and, (3) there was a causal connection between
the two. Jennings
made this showing, shifting the burden to MEC to show a legitimate
nondiscriminatory reason for its actions. If the employer shows a
legitimate non-discriminatory reason, the employee must then show that the
reason given by the employer is merely a pretext for discrimination.
MEC
argued that it had an "honest belief" that Jennings was misusing her leave time.
Under the "honest belief rule," some circuits have held that if
the employer honestly believes that an employee is misusing leave time, the
employer cannot be found liable even if the belief is mistaken. The court
declined to adopt this rule finding that it takes away an employee's
ability to show that the reason proffered by the employer for the adverse
action was a pretext for discrimination.
Nevertheless,
the court found that in Iowa,
an at-will employment state, termination for dishonesty and misuse of leave
time are valid and non-discriminatory explanations for terminating an
employee. Jennings
was unable to show any evidence that these stated reasons were actually a
pretext for discriminating against her based on her exercise of FMLA
rights. Thus, Jennings
retaliation claim was dismissed and not allowed to proceed to trial.
Tips for Employers
- Proceed with
caution before terminating or disciplining employees based on misuse
of protected leave time. Consult with competent labor and employment
counsel. Investigate any alleged misuse of leave time thoroughly.
- Refrain from
questioning co-workers, friends or family of the employee regarding
the employee's use of protected leave. Doing so may constitute an
invasion of privacy and interference with protected leave rights.
- Employers who do
not have enough information to determine if the leave taken qualifies
under FMLA or CFRA should direct their inquires
to the employee taking the leave.
- Consistently apply
policies and discipline evenly and uniformly.
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