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 LEXIS 13694 (5th Cir. June 11, 2007)(unpublished), the employee alleged that he was denied sick leave in retaliation for his prior use of FMLA leave.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

Employer Investigation Negated Finding of Willful Violation of the FMLA

An employer's reasonably informed decision to terminate an employee where the employer's internal investigation concluded that the employee had falsely reported to his immediate supervisor that his absences were approved for FMLA leave defeated the employee's assertion that the employer willfully violated the FMLA when it terminated the employee. 

Price was a bargaining unit employee of the defendant.  He was entitled to 480 hours FMLA leave each calendar year.  Company policy required that he inform both his immediate supervisor and the Leave Administrator to report his absences, including FMLA absences.  Company policy also provided that an employee who accumulated nine or more non-FMLA absences would be terminated. Defendant became aware of a discrepancy between the number of absences Price reported to his immediate supervisor and the number of absences reported to the Company Leave Administrator.  An internal investigation revealed that Price had failed to report 101.8 of 530.9 hours of absences he incurred during 2002.  As a result, the hours were never deducted from the Plaintiff's FMLA leave balance.  The investigation also concluded that Plaintiff had exhausted his FMLA leave by the end of June 2002, and the the subsequent unprotected absences warranted his termination under Company policy.  The Company subsequently terminated Price.

Price filed suit three years after his termination alleging violations of the FMLA.  The Company moved for summary judgment arguing that the suit was untimely.  The FMLA requires that a civil suit within two years of the alleged violation.  The FMLA permits civil suit up to three years where the alleged violation by the employer was willful.  In the Eighth Circuit, to establish a "willful" violation of the FMLA, a plaintiff must show that the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute. 

The court in Price v. GKN Aerospace North America, Inc., No. 4:05CV01147 ERW (E.D.Mo. Oct. 20, 2006) found that Price had failed to establish that the employer knew or showed reckless disregard of the employee's FMLA rights before it decided to terminate him.  The court concluded that the employer's decision was reasonably informed based on the internal investigation it conducted that found that Price had failed to accurately report his FMLA leave in accordance with company policy.  The court noted that the employee admitted that he stopped reporting his absences to the Leave Administrator because he felt it was not required by the FMLA as he had informed his immediate supervisor of his need for leave.  The court found the employee's claim untimely. 

Alternatively, the court also dismissed the employee's claim based on the honest belief defense.  The court found that, even if it were mistaken, the Company was entitled to dismissal of the civil suit because it demonstrated that it terminated Plaintiff based on an honestly  held belief that Plaintiff was attempting to obtain additional leave fraudulently and determined that Plaintiff exceeded the number of permitted unexcused absence under the Defendant's attendance control policy.

Comment: The decision certainly encourages federal employers facing civil suit by employees pursuant to Title I, the CAA, and the PEOAA to conduct a reasonable and prompt investigation of employee misconduct before taking adverse action that could be the basis for the employee to sue the employer for interference with or retaliation for the exercise of FMLA rights.  Note that the investigation took less than a day.  The employer was notified of the leave discrepancy on July 24, it conducted an investigation, and the employee was terminated the next day.  The reasonableness of an investigation, of course, will be driven by the complexity of each factual situation.

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.  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 confirmed 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.  The honest belief defense should be applicable to all federal sector variants of the FMLA.

Termination for Swearing and Fighting Words Not Protected by FMLA, Even if Incident Involved Request for FMLA Leave

The Ninth Circuit in Denny v. Union Pacific Railroad Co., No. 04-35490, 20006 U.S. App. LEXIS 5993 (9th Cir. March 9, 2006), affirmed the judgment of the district court in favor of the employer.  The employee alleged that the employer violated the FMLA by discharging him because he requested medical leave and because he challenged the decision denying him leave.  The employer alleged that it discharged the employee for swearing at a supervisor and asking him to "take it outside" during a dispute over the employee's request for FMLA leave.  The court noted that the district court's refusal to make a finding as to what the plaintiff actually said does not make the finding clearly erroneous.  The "question is not what Plaintiff actually said, but only whether Defendant fired him because of what Defendant believed he said, rather than for a reason prohibited by the FMLA."  Moreover, an employee's insubordination and fighting words are not protected merely because the underlying subject is protected.    

Comment:  The case reminds us that the exercise of FMLA rights does not immunize an employee from discipline that would have been imposed if the FMLA was not in the picture.