The FMLA Blog

Third Circuit Sustains Employee's Removal for Lying About Reason for Absences

John Prigge told Sears, his employer, that he was absent for two days to receive radiation treatment for prostate cancer.  In reality, Prigge suffered from bipolar disorder, which had been diagnosed several years earlier.  Prigge was subsequenlty absent for seven days during which he was admitted to a medical clinic suffering from depression.  On this occasion, Prigge advised Sears that his absence was due to incapacity and treatment for bipolar disorder.  He also confessed that his prior absence was not due to prostate cancer, but to bipolar disorder. 

Sears demanded that Prigge provide medical documentation substantiating his need for leave due to prostate cancer and bipolar disorder.  Prigge provided medical documentation substantiating his need for leave due to bipolar disorder.  He provided medical certification verifying that he did not suffer from prostate cancer.  Sears fired for failure to substantiate his need for leave with medical documentation due to prostate cancer, and for lying about his need for prostate cancer. 

 The Third Circuit agreed with Sears.  It found, essentially, that Sears had the right to terminate Prigge for lying about his need for leave, and because he failed to substantiate that need with supporting medical documentation. 

Comment:  However awkward or embarrassing, employees need to tell their employers the real reason for their need for FMLA leave.  Courts have not allowed employees to tell their employer a false reason for the need for leave.  In addition to being truthful, had Prigge told Sears the real reason for the prior leave it would have likely been covered by the FMLA.  Courts have not excused employees from telling their employer the real reason for their need leave out of embarrassment or fear that the reason will be fodder for office gossip.  Nor have they looked past the false reason to find FMLA coverage based on the real reason for the leave.  Courts have consistently found that employers are entitled to the real reason animating the need for leave. 

 Prigge v. Sears Holding Corp., No. 10-3397 (3d Cir. June 23, 2011).

Alteration of FMLA Medical Certification Results in Criminal Indictment of NJ Postal Worker for Forgery, Tampering with Public Records

A postal employee from Brick, New Jersey was indicted on forgery and tampering with public records charges for altering an medical certification in order to obtain additional FMLA leave.  

As reported in the Friday, July 18, 2008, Asbury Park Press, an Ocean County grand jury indicted Brick New Jersey postal worker Vincent Dawidowicz for altering a medical certification originally prepared by his physician.  Dawidowicz, according to the article, added that he suffered from a lifetime condition for which he would need to take two to three days of FMLA leave once or twice a month. 

If convicted, Dawidowicz faces up to five years in prison.  Under New Jersey law, forgery is a third degree crime carrying a maximum prison term of five years.  Tampering with public records is a fourth degree crime with a maximum eighteen-month prison sentence.

Comment: Altering an FMLA medical certification is NEVER a good idea. Courts have consistently sustained the discharge of employee's who have altered their FMLA medical certification.  As demonstrated by Mr. Dawidowicz, employee's also run the risk of criminal penalties.  Even if the prospect of actual prison time is remote (particularly for a first offense), a criminal record for forgery and tampering with public records will, for all practical purposes, render an individual unemployable for a wide range of decent paying jobs.  Being stuck on the bottom rung of the income ladder will have lasting effects for the employee and the employee's family.  There is also the high legal cost of defending a criminal indictment, to say nothing of the public shame for the employee and the employee's family.  

Employees who believe that their FMLA medical certification does not accurately describe their need for FMLA must work within the system to correct the certification.  That means the employee should go back to their medical provider to secure the changes.  If the medical provider is unwilling to change the certification, there is a whole telephone book full of medical providers the employee can try.  The FMLA does not require that you stick with your original medical provider in order to modify a medical certification.  Employee's who, through frustration with the system, take matters into their own hands with a few strokes of the pen run the considerable risk of losing everything.  DON'T DO IT!     

The full Asbury Park Press article is attached     http://www.app.com/apps/pbcs.dll/article?AID=/20080718/NEWS02/807180474/1001/NEWS           

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).