The Federal Sector FMLA Blog

Termination of Employee for Threatening Retribution for Partial Denial of FMLA Leave Did Not Interfere with Employee’s FMLA Rights

In McConnell v. Swifty Transportation, Inc., No. 05-4297, 2006 U.S.App. LEXIS 21900 (6^th Cir. Aug. 23, 2006, McConnell worked as a gasoline truck driver for Swifty for sixteen years until her termination.  In 2003, McConnell was diagnosed with acute stress disorder and major depression.  He was prescribed an anti-depressant and placed on two weeks medical leave, which was subsequently extended for two months.  McConnell applied for short-term disability benefits.  His application was sent to Swifty’s disability benefits, provider, which partially denied the request based on insufficient medical documentation.  During a conversation with a representative of Swifty’s disability benefits provider regarding the partial denial of benefits and the need for more medical documentation McConnell allegedly got mean and alleged stated that he wished his doctor would return him to work so that he could “personally come pay” the representative a visit.  The representative took the comment as a threat and reported it to Swifty.  Swifty terminated McConnell the next day.  McConnell denied making the comment.  McConnell sued alleging that Swifty retaliated against him for exercising his rights under the FMLA by terminating his employment.  The court disagreed.  The court found that Swifty had an “honest belief” that McConnell made the threatening comments for which he was fired.  McConnell had argued that the short time frame in which Swifty determined to discharge him rendered its claimed “honest belief” unreasonable.  To determine whether the employer had an honest belief in the proffered basis for the adverse action, the court considers whether the employer can establish its “reasonable relieance” on the particularized facts that were before it at the time the decision was made:  The court continued:

In deciding whether an employer reasonably relied on the particularized facts then before it, we do not require that the decisional process used by the employer be optimal or that it left no stone unturned.  Rather, the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse action

Importantly, we must not second guess the business judgment of the employer, but simply evaluate whether the employer gave an honest explanation of its behavior.

Here, the court found that Swift honestly believed that McConnell threatened the disability benefits representative and that the decision to terminate him was reasonably informed and considered.  The court found that the two-minute time line between the threat and termination decision did not render the decision invalid, particularly where Swifty had a supervisor call McConnell and confirm the threat before making the final decision.

Comment:  The “honest belief” defense is frequently invoked by employers to justify the adverse action decision at issue.  As demonstrated in McConnell, the standard for establishing the employer’s “honest belief” is quite low.  The decision also demonstrates that the FMLA does not protect employees from the consequences of their conduct independent of their request for leave.  As all federal sector FMLA variants prohibit retaliation, the honest belief defense should be available to all federal employers.

“Milking Sick Leave” Accusation Sufficient to Establish Nexus Between Removal and Use of FMLA Leave

In Wynn v. J.C. Penny Co., Inc., No. 4:05CV238, 2006 U.S. Dist. LEXIS 15646 (E.D.Tex. March 14, 2006), the court denied the employer’s motion for summary judgment dismissing the employee’s FMLA claim.  The employee alleged that his former employer intimidated and ultimately terminated him after he had taken FMLA leave due to depression following the death of his common law wife as a result of cancer.  While out on approved disability leave for three months Mr. Wynn’s supervisor called him numerous times and pressured him to return to work.   On his return to work his supervisor told him that “milking sick leave is a fast way to get fired,” and that he “had better get his resume in order because [he] was on the way out the f  ing door.”  Wynn was fired two months later for disruptive behavior as a result of his involvement in verbal altercations with several co-workers.  Wynn alleged that he was fired in retaliation for taking FMLA leave.  In denying the employer’s motion for summary judgment, the court relied on the fact that he was terminated within two months of his return from FMLA leave and that he was yelled at for “milking” sick leave and threatened with termination. 

Comment:  Agencies need to train their supervisors that FMLA leave is a right, not a privilege, and that the law protects employees who exercise that right from interference and retaliation.