The FMLA Blog

Honest Belief Defense to FMLA Retaliation Claim Supported by Hiring of Investigator

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 LEXIS 13694 (5th Cir. June 11, 2007)(unpublished), the employee alleged that he was denied sick leave in retaliation for his prior use of FMLA leave.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.   

No Violation of FMLA Where Employer Established Honestly Held Belief that Employee Used FMLA Leave to Attend Court Hearing

The court in Lyerla v. A&A Manufacturing Co., Inc., No. 2:05-CV-286, 2006 U.S. Dist. LEXIS 75234 (N.D.Ind. Oct. 16, 2006), denied the employee's motion for summary judgment that the employer interfered with his entitlement to FMLA leave for his own serious health condition when it terminated him after learning that he attended a previously scheduled court hearing on the day he was supposed to be in FMLA leave.  The evidence established that Lyerla had a court appearance scheduled for March 21.  He told co-workers that he intended to call off working using an FMLA day in order to attend his March 21 court date.  Plaintiff did, in fact, call off working using an FMLA day on March 21.  Plaintiff's co-workers notified management that plaintiff had intended to use an FMLA day to attend court on March 21.  The court found a question of material fact as to whether the Defendant honestly believed Plaintiff used his FMLA leave to attend a court hearing.  The Court noted that Lyerla failed to present any evidence tending to establish that Defendant's reasons for terminating him were false or dishonest in any way.

Comment:  The case came to the court in a slightly different posture than the norm.  The summary judgment motion in this case was filed by employee whereas most summary judgment motions are brought by employers.  The court's decision applied the honest belief defense.  The defense provides that, if the employer honestly believes in the reasons it took the adverse actions that it did, the plaintiff loses even if the reasons are foolish or trivial or baseless.  Because the employer did not move for summary judgment the court declined to dismiss the civil suit. 

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 reliance” 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 provider 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.