The Federal Sector FMLA Blog

Indictment of Second Postal Worker for FMLA Fraud

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.      

Retalation Claim Not Available for Employee Who Creats a Fictional Reason for Taking Leave

Ashley McClain worked for McDonald's as a a first assistant manager of one of their restaurants.  In July 2004 she requested leave after discovering that her father hand cancer.  She was granted two weeks of unpaid FMLA leave.  On October 18 she informed her manager that her father was scheduled to undergo surgery for a stent operation in 11 days.  She asked for and took an indefinite period of leave.  From October 18 to October 29 McClain was out on leave.  She did not contact her employer during this time.  McClain failed to report to work for her next scheduled shift on October 29.  McDonald's initiated an investigation of her failure to report to work. During her investigatory interview McClain claimed that she did not report to work as she was caring for her father after surgery.  She refused, however, to put her explanation in writing.  She was told to go home and wait for further instructions.  Plaintiff subsequently showed up to work and refused to leave when asked.  McDonald's called the police.  McClain left the premises only when the police arrived.  After a second similar confrontation McClain was fired.

McClain sued alleging that she was terminated for her use of FMLA leave.  The court disagreed. 

To establish a prima facie case of retaliation under the FMLA a plaintiff must show that: (1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment action; and (3) a casual connection exists between he adverse employment action and plaintiff's exercise of FMLA rights.  If plaintiff establishes a prima facie case for retaliation the burden shifts, and defendants must state a legitimate non-retaliatory reason for the adverse action.  Once defendants state a legitimate non-retaliatory reason for the adverse action, the burden sifts again, and plaintiff must demonstrate that defendants' proffered reason is a pretext for FMLA retaliation.  To show pretext, the plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer's proffered legitimate reasons for its actions that a reasonable fact finder could rationally find them unworthy of credence. 

McDonald's moved for summary judgment on plaintiff's FMLA retaliation claim on two grounds: (1) plaintiff was not engaged in a statutorily protected activity; and (2) plaintiff could not show that defendants' non-retaliatory reason for the adverse employment action was pretextual.

McDonald's alleged that plaintiff cannot establish that she engaged in statutorily protected activity and, therefore, she could not establish a prima facie case of FMLA retaliation because the FMLA does not protected employees who create fictional reasons for taking leave.  McClain testified at her deposition that she was with her father on October 29 while he underwent a stent operation.  At trial McClain admitted that her father did not undergo a stent operation at any tine in October 2004, a fact confirmed by the testimony of her father.  McClain claimed that when she requested leave on October 18 she honestly believed that her father was to undergo surgery.  Significantly for the Court, McClain had no explanation why she did not call her manager at any time during her 10 day absence and tell him that her father had not undergone surgery.  In fact, on her return to work and at her subsequent deposition McClain lied and stated that she cared for her father after surgery.

On these facts, the court concluded that McClain had not engaged in a statutorily protected activity (attending her father's stent implementation and caring for him thereafter). 

The Court also concluded that, even if plaintiff engaged in statutorily protected activity, McDonald's was nevertheless entitled to summary judgment on plaintiff's FMLA retaliation claim because McClain had failed to establish that McDonald's reason for terminating her was pretextual.  McDonald's fired McClain for failing to report to work for several days, insubordination, repeated use of foul language, and destruction of company property as a result of two confrontations she had during the company's investigation of her absences. 

Comment:  FMLA leave secured by fraud is not protected.  Moreover, employee's have no greater employment rights because they use FMLA leave than if they did not exercise FMLA rights. Employees who lose their cool during a company investigation of the bona fides of their leave can be disciplined just as if the employee had never gone on FMLA leave and lost their cool.  Of course, employers must be careful not to subject employee's who have exercised FMLA rights to disparate treatment in terms of discipline for conduct compared to the discipline for similar conduct issued to employees who have not exercised FMLA rights.      

The decision is reported at McClain v. McDonald's Corp., No. 05-1117, 2007 U.S. Dist. LEXIS 5461 (E.D.Pa. Jan. 25, 2007).