FMLA Leave Does Not Shelter Employee’s from Unrelated Discipline

In Newton v. Suntrust Bank, No. 6:05-cv-604-Orl-18JGG, 2006 U.S. Dist. LEXIS 37051 (M.D.Fla. June 7, 2006), the court awarded summary judgment to the Bank dismissing the employee’s FMLA retaliation claim.  In that case, the employee provided a medical certification from her physician covering certain dates.  The employer told the employee that the certification was not sufficient and that she needed to submit a new certification.  The employee claimed that she contacted her physician’s office whereupon someone told her that could change the Form herself and that the doctor would sign off on the changes.  The employee made the changes by using whiteout over the original dates.  She then submitted the altered from to the Bank without the doctor’s initials indicating his approval of the changes.  Suspecting that the medical Form had been altered, the Bank met with the employee to discuss the form.  The employee stated that her doctor’s office had made the changes to the Form.  Prior to the meeting, the Bank had contacted the doctor’s office and was told that the office had not made the changes.  The Bank terminated the employee because she failed to be honest in her responses to the Banks questions regarding the Form.  The employee alleged that the Bank terminated her for exercising her rights under the FMLA.  Even though the court found that the employee had engaged in protected activity (use of FMLA leave), it nevertheless concluded that the Bank did not fire her for exercising those rights, but because she failed to be honest with her supervisors regarding the alteration of the medical Form.  The court dismissed as “mere speculation” the employee’s belief that she was discriminated against because she had requested FMLA leave. 

Comment:  The case serves as reminder that the exercise of FMLA rights does not insulate employees from unrelated discipline.   

Comments

[Carl C. Bosland]

Nice catch! The court did not address the employer's violation of 825.307(a) by contacing the employee's physician without prior approval. You should note that many courts will not entertain a lawsuit for violation of this rule unless the employee can demonstrate that they suffered actual harm as a result of the contact. That is, absent actual damages, technical violations of the Act generally will not support an FMLA civil lawsuit. Even a technical violation of the Act should, however, support a claim for injunctive relief to compel the employer to abide by the FMLA.

[RPAL]

This does not address the issue of the Bank contacting the employee's doctor which is prohibited under FMLA unless the contact is authorized by the employee and done through the bank's medical personnel. Did the bank have the employee's permission?