Termination Based On Abuse Of FMLA Leave Upheld

In a recent opinion, the Sixth Circuit affirmed the dismissal of an FMLA lawsuit based on the employer’s “honest belief” that the employee had improperly abused his FMLA leave. More after the break.

In 2006, Ohio Bell employee Erik Tillman was diagnosed with lumbar degenerative disease, causing him chronic back pain.  Due to his condition, Tillman asked for, and received permission from Ohio Bell to take intermittent FMLA leave.  After several months, Ohio began noticing suspicious patterns in Tillman’s use of leave; Tillman used his leave predominantly on Fridays and Mondays, thereby extending his weekends, and began scheduling FMLA leave in advance around vacations and holidays.  Ohio Bell began investigating Tillman’s activities, and even hired a private investigator who observed Tillman performing various tasks that should have been prevented by his injuries.  Upon reviewing all of the data along with input from an independent physician, Ohio Bell terminated Tillman.

In response, Tillman filed an FMLA retaliation claim against Ohio Bell.  The district court granted summary judgment for Ohio Bell because the employer demonstrated that it had an honest belief in the legitimacy of its reason for terminating Tillman based on the evidence gathered during its investigation.  The Court of Appeals for the Sixth Circuit affirmed.

According to the Sixth Circuit, employers are not required to conduct an exhaustive investigation to verify their legitimate, non-discriminatory reason for termination, only that the decision be reasonable based on the facts before it.  Ohio Bell’s decision was based on its records of Tillman’s leave requests, the private investigator’s report, and a physician’s report on Tillman’s condition after reviewing video of his activities taken while on FMLA leave.  The Sixth Circuit found that Ohio Bell’s factual record was more than sufficient to justify its actions.  Tillman argued that Ohio Bell should have consulted his personal physician in its investigation in order to form an honest belief.  The Sixth Circuit disagreed, holding that an independent physician’s review of Tillman’s activities on video during his leave was sufficient and reasonable grounds to support Ohio Bell’s decision.

The more complicated issue was whether, in a FMLA interference claim, an employee’s abuse of his FMLA rights defeats a claim for FMLA benefits.  An interference claim lacks the scienter present in a retaliation claim.  However, an employer can still interfere with FMLA rights, even with an honest belief that the employee is abusing those rights.  The Sixth Circuit acknowledged a split of circuit authority on this issue, but decided not to hold whether the honest belief defense blocks an interference claim within its own circuit.  Rather, the Court found that Tillman was not entitled to FMLA leave, so his interference claim was invalid.

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