The FMLA Blog

Employer's Good Faith Suspicision of Theft Defeats FMLA Claim

Gwendolyn Donald worked for Arby's as an assistant manger.  Shortly after being hired she suffered a  series of medical problems causing intermittent periods of extreme pain.  She was granted FMLA leave for related surgeries.  While working the drive-through window, Donald.s cash register was over $4.00.  Concerned that his might e evidence of employee theft, the company conducted an investigation, including video surveillance.  The surveillance suggested that Donald was ringing folks up at the full amount while recording the transaction in the register as discounted, and pocketing the difference.  The suspicion could not be confirmed because  the customers could have been handing coupons to Donald, which would explain the discrepancy.  The company confronted Donald with its suspicions. When she refused to acknowledge in writing that she was stealing, she was fired. 

Donald sued alleging that she was terminated in retaliation for taking FMLA leave in the past. She also claimed that her termination interferences with her right to return to work from intermittent FMLA leave in the future.  The Court initially noted that there were substantial questions regarding her FMLA retaliation/interference claims.  Such questions would normally defeat the employer's motion for summary judgment. Because, however, the court found that the company established a legitimate, nondiscriminatory reason to end Donald's employment, and that Donald had failed to establish that the reason was pretextual.

The court agreed that being $4.00 over may be evidence of theft. The court also credited the company's investigation, which confirmed the possibility of theft.  The company's handbook cited theft as a reason for immediate termination.  A demonstrable risk of theft, the court found, is a legitimate reason ro an employer to end that person's employment.

The court rejected the non-theft explanations offered by Donald.  The fact that the discrepancy could be explained because the customers could have presented discount coupons failed to diminish the legitimacy of the the company's concerns.  The court explained:

There may be other explanations for the discrepancies beyond the, but Plaintiff has offered no reason to believe Plum, Barocko, and Ballance fabricated their concern to cover up their unlawful discrimination.  Indeed, whether Plaintiff was actually stealing or not is largely irrelevant, the relevant question is whether the evidence of theft was a sufficient reason and the actual reason for Plaintiff's termination.  Plaintiff's evidence does not demonstrate that Defendant made up its reason for the termination, the stated reason was not the real reason, or that the stated reason is insufficient to justify the decision.  Nor is there any evidence that the inconvenience associated with her requests for FMLA lave played any role in the decision to end Donald's employment.

Comment:  So long as an employer can establish that it had a good faith belief that it took an adverse action against an employee for legitimate, nondiscriminatory reasons, the employer will likely be successful in defeating an FMLA at the summary judgment phase.  The employer does not have to prove that its suspicions were, in fact, correct. It need only prove that it held those suspicions in good faith, and acted on those suspicions when it decided to terminate the employee. 

To show pretext, an employee will have to demonstrate that the employer did not have a good faith belief that the employee engaged in conduct that could get them terminated.  This is not an easy burden.  Simply offering innocent, alternative explanations won't do it.  Stated differently, the fact that the employer may not be able to prove theft "beyond a reasonable doubt" is not the standard.  To defeat an FMLA claim, all the employer need prove is that it had a reasonable, good faith suspicion of theft. 

Evidence of innocent, alternative explanations might, however, be used as evidence of a particularly substandard employer investigation.  Coupled with some adverse comments incident to the use of FMLA leave in the past, and a short period of time between protected activity and the adverse action, and the employee can start to build a credible argument to survive the employer's inevitable summary judgment motion. 

The case is Donald v. Sybra Inc., No. 09-12252-BC (E.D. Mich. Aug. 11, 2010).

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.