In United States of America v. Edward Mosby, Criminal Action No. 3:08-CR-127, 2008 U.S. Dist. LEXIS 56583 (E.D.Va July 25, 2008), the court denied the employee's motion to dismiss the criminal indictment againt him for fraudulently securing FMLA/paid sick leave based on his alleged inability to work in order to sell real estate full time as an independent real estate broker.
Mosby was employed full time as a Manager of Customer Service at the Ridge Branch Post Office in Richmond, Virginia. Between September 26, 2006 and January 19, 2007, he was approved 590 hours of paid sick leave/FMLA leave based on medical documentation showing that he was unable to work due to chronic stress. While on leave Mosby entered into a contract with Century 21 to sell real estate as an independent contractor. The indictment alleges that, in violation of federal law, Mosby neglected to inform the Postal Service of this alternative employment. It also alleged that, prior to going out on leave, Mosby left his office on over 200 occasions to show real estate, and viewed over 40,000 real estate websites in the month prior to taking leave.
Mosby was charged with Fraudulent Demand in violation of 18 U.S.C. 1003. The charge asserts that Mosby submitted false medical documentation to secure paid sick leave/FMLA leave costing the Postal Service over $ 18K.
Mosby moved to dismiss the indictment and suppress evidence obtained from his physician. Mosby argued that, in accord with the FMLA, he submitted medical documentation from his physician establishing that he was incapacitated from work due to a serious health condition: stress. His physician argued that Mosby's involvement in the real estate business during his absence was therapeutic. As such, Mosby argued that he did not submit false medical documentation as required to establish Fraudulent Demand. Mosby also argued that the FMLA does not prohibit an employee from engaging in employment while on leave, and that the inability to work component relates only to the employee's current job not a second job.
The court held that whether Mosby's activities as a real estate broker during leave demonstrated that he was ability to perform his duties at the Postal Service was a question of fact that hinged on the similarity in the job functions. Because questions of fact exist, the court denied Mosby's motion to dismiss.
Comment: This is the second reported instance of a criminal indictment of a Postal employee for FMLA fraud. As reported in my July 21, 2008 post, a New Jersey Postal worker was indicted for allegedly altering an FMLA medical certification. The cases demonstrate that employer's, frustrated with the high cost associated with frequent or extended absences, are willing to go after employees criminally when they suspect FMLA fraud. In addition to job loss, employee's risk criminal prosecution, including fines, jail, and a permanent record, if they fraudulently secure FMLA leave.
Postal workers should take particular note: two reported criminal cases arising in different states in the same month suggests something other than coincidence.