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Employer held honest belief discharged employee was abusing FMLA leave; no retaliation

By Marjorie Johnson, J.D.

An employee with chronic back pain who took intermittent FMLA leave for more than two years, and was fired after his employer became suspicious of the patterns in the timing of his leave requests, could not advance FMLA interference and retaliation claims, ruled the Sixth Circuit ruled in an unpublished opinion (Tillman v Ohio Bell Telephone Co, October 8, 2013, per curiam). Summary judgment was warranted as to the employee’s FMLA retaliation claim since he failed to refute that his employer held an “honest belief” that he abused his FMLA leave and violated its code of conduct. Moreover, although the district court also applied the “honest belief” rule to his FMLA interference claim, it needn’t have made the decision to do so since the employee failed to show he was entitled to FMLA leave in the first place, thus warranting dismissal of that claim as well.

Intermittent leave provides long weekends off. The employee worked for Ohio Bell Telephone Company as a telecommunications specialist (TCS). In 2006, he was diagnosed with lumbar degenerative disease, which allegedly caused him to experience exacerbated back pain two to three days a month. In December 2006, Ohio Bell granted his request for intermittent FMLA leave, which he was allowed to use whenever his back pain flared up or when he had doctor’s appointments. He took several periods of intermittent FMLA leave over the next two-and-half years. These FMLA days routinely fell on Fridays and weekends, resulting in him having three-day or four-day weekends on several occasions, including the weekend preceding the New Year’s holiday. Also, although his doctor had stated that he could not predict when he was going to have a flare up of his back pain, he often notified his supervisor several days in advance that he intended to use FMLA leave time on a future date.

Towards the end of 2008, his coworkers and supervisors began noticing these patterns in his leave and complained to the area manager. After reviewing the information and observing the patterns in his FMLA leave, the manager suspected misuse of FMLA time. He contacted human resources, who recommended that the FMLA department investigate the matter. The FMLA manager agreed that the employee’s FMLA use was suspicious and turned the matter over to the company’s asset protection department for investigation. The assigned investigator hired a private investigation company to conduct surveillance of the employee during his FMLA leave.

Surveillance leads to discharge. The surveillance company videotaped the employee on two separate days that he took FMLA leave. On March 15, he was observed working in his yard and in his garage for two hours. On March 28, he was observed driving his family around for two hours and conducting a number of personal errands. He was also observed working in his garage for an hour, during which time he repeatedly bent down, lifted and carried pieces of wood trim.

Ohio Bell provided the surveillance report and video to an outside medical consultant for review. The consultant issued a report concluding that the employee’s activities on the two videotaped days were inconsistent with the physical behaviors typical of someone with incapacitating back pain. She suggested that he was thus not incapacitated from performing his work duties on those dates. Amongst other things, she noted that he was seen bending without any sign of pain or weakness and was able to reach above his head and take objects down from above. He also moved objects with one hand, could kneel and stand without hesitation, and walked and stood without any sign of stiffness, weakness or pain.

Six days later, the investigator questioned the employee regarding his FMLA usage. The employee allegedly indicated that he used FMLA on weekends because he did not have time to do his home exercises during the week. He was unable to recall his activities on March 15 or 28, but suggested that he may have been able to engage in some physical activities because he may have received a Cortisone shot that day. He also stated that he may have been under the influence of painkillers and thus could not have operated a company vehicle.

As a result of the investigation, the employee’s request for FMLA leave on March 15 and 28 were denied. The findings of the investigation were subsequently reported to members of management who concluded that he should be terminated. After a hearing by the dismissal review board, the employee was discharged based on his violation of the AT&T Code of Business Conduct, which prohibited fraudulent or illegal conduct.

FMLA retaliation. The district court did not err in ruling that summary judgment was warranted as to the employee’s FMLA retaliation claim due to its finding that the “honest belief” rule protected Ohio Bell’s discharge decision. Specifically, Ohio Bell established that it held an honest belief that the employee abused his FMLA leave and violated the company’s code of business conduct. The employee could not establish pretext simply by arguing that the proffered reason was incorrect. Rather, he was required to put forth evidence demonstrating that Ohio Bell did not “honestly believe” its proffered non-discriminatory reason, which he failed to do.

Notably, in deciding to discharge him, the company relied on the investigation report and the surveillance tapes of his activities; his interview statements; the medical consultant’s report; the employee’s e-mail to his supervisor indicating he would take FMLA leave on a certain day if he got assigned to the night shift; and the pattern observed over a period of nearly two-and-a-half years of the employee’s use of FMLA leave on weekends or combined with his days off and holidays.

It was entirely proper for Ohio Bell to consider its medical consultant’s report in forming its honest belief, ruled the appeals court. She reviewed the video footage, the employee’s job description, and his 2009 FMLA certifications, and concluded that his activities on March 15 and 28 were inconsistent with how someone with incapacitating back pain would act. Although the employee argued that she should have discussed the matter with his own physician, and should have inquired about the specific weight of the objects she observed him carrying in the video, Ohio Bell was not require to show that its investigation was “optimal or that it left no stone unturned.” In sum, the record reflected that Ohio Bell made a reasonably informed and considered decision based upon the particularized facts before it at the time.

FMLA interference. The Sixth Circuit also affirmed summary judgment against the employee on his FMLA interference claim, but for different reasons than those found by the district court. Although the lower court held that the use of the “honest belief” rule applied to the employee’s interference claim, the appeals court decided that it did not need to resolve this “thorny issue.” Notably, the circuit’s authority on this issue was conflicting. And, although the “honest belief” defense fit neatly into the retaliation context — where the legal standard inherently demanded an employer’s culpable mental state — an FMLA interference claim lacked this inherent scienter requirement and simply prohibited interference with FMLA rights. Moreover, although the Third, Seventh and Tenth Circuits have allowed the “honest belief” defense to interference claims, the Sixth Circuit averred that the relevant FMLA provisions did not support the broad inference that an employer may defeat an interference claim solely on the basis of its honest belief (even if mistaken) that the employee wrongfully claimed FMLA leave.

The Sixth Circuit ultimately dodged the bullet on this issue by concluding that the employee failed to show he was entitled to FMLA leave in the first place. Specifically, because Ohio Bell asserted that he failed to show entitlement to FMLA leave for the March 15 and 28 dates, he was required to present evidence demonstrating his entitlement. He failed to do so, but instead asserted only that Ohio Bell failed to disprove his alleged condition, which was insufficient. Because Ohio Bell presented evidence casting doubt on the employee’s need for leave, the appeals court refused to presume from his chronic condition and intermittent leave requests that he actually suffered from a serious condition on those specific days. To do so would allow a medical certification attesting to an intermittent condition to be used as a license to take unnecessary medical leave, eliminating the employee’s burden of showing entitlement.

Concurrence. In a concurrence, Chief District Judge Gerald Rosen argued that the lower court properly applied the “honest belief rule” to the employee’s interference claim, since the issue was not simply his entitlement to FMLA leave but rather his abuse of his FMLA leave rights. Judge Rosen also disagreed with the conclusion that the employee failed to show entitlement to FMLA leave in the first place. Rather, he believed that this element of the prima facie case was satisfied once the employee provided the company with the his doctor’s medical certification, establishing that he suffered from a serious health condition that made him unable to perform the functions of his job and certifying a “medical necessity” for intermittent FMLA, which Ohio Bell accepted without question.