In Williams v. Lyondell-Citgo Refining Co., Ltd., No. 05-20653, 2007 U.S. App. LEXIS 13694 (5th Cir. June 11, 2007)(unpublished), the employee alleged that he was denied sick leave in retaliation for his prior use of FMLA leave. As evidence of retaliation, the employee cited, among other factors, his placement under surveillance for a ten-day period by an investigator retained by Citgo. Citgo argued that it did not deny Williams sick leave in retaliation for his prior use of FMLA leave, but that it honestly believed that his request for sick leave was not legitimate. The Court agreed with Citgo.
Significantly, the Court found that Citgo's retention of an investigator and surveillance of Williams was not evidence of FMLA retaliation, but supported the employer's honest belief defense.
Comment: Understandably, employee's believe that employer surveillance is, by its very nature, harassing and retaliatory. As demonstrated by the Williams decision, courts may have a very different take on surveillance. The decision should support surveillance as a technique available to employer's to confirm the legitimacy of FMLA leave. To avoid disparate treatment claims, employers will want to use surveillance on non-FMLA as well as FMLA leaves of absence. In contrast, union's and the plaintiff's bar may want to explore in discovery whether employer's only use surveillance for FMLA leave. If that is the case, the employer's use of surveillance might well be evidence of discriminatory treatment and retaliation.