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Golfing while on intermittent leave was factual basis for ‘abuse’ of FMLA

By Joy P. Waltemath, J.D.

The employee argued that golfing during intermittent FMLA leave for a shoulder condition wasn’t “abuse” of leave because, among other things, “80 percent of your swing is legs and core.”

Affirming summary judgment for an employer who fired a worker for abusing intermittent FMLA leave by golfing during his leave and “stacking” it next to PTO days or weekends, the Sixth Circuit, in an unpublished opinion, held that the employee had not shown that the rationale for firing him—”abuse” of FMLA leave—had no basis in fact and was pretext for retaliation. The employee never argued that his use of FMLA leave did not include golfing; he argued instead that he took leave around vacations or weekends to give himself as much rest as possible, and golfing did not cause him pain the way the repetitive motions in his job did (LaBelle v. Cleveland-Cliffs, Inc., September 13, 2019, Nalbandian, J., unpublished).

After working almost nine years as a quality-control lab technician at a mining operation, the employee’s avascular necrosis—disruption of blood flow to the bones that causes bone deterioration—spread from both of his hips (which he had replaced) to his shoulders. His job required him to pour and weigh mined materials, using repetitive arm motions for a much as 12 hours a day. He contended that his shoulder pain was worsened by “anything that is kind of arms up for a long period of time.” When he had absence problems, he explained that he was missing time due to shoulder pain, and the company suggested he check into intermittent FMLA leave. His first request, however, was denied.

The employee tried again with a different physician, who provided documentation that it was medically necessary for him to miss work during “flare-ups” of his condition, which could occur about once a month for three-day periods. The company approved his request, noting that his FMLA leave was “limited to the condition specified in [his] certification” and that “[i]mproper use or abuse of intermittent leave is grounds for discipline, up to and including termination.”

Suspicious. The employee repeatedly combined his FMLA days with scheduled days off and vacation days, which his employer found suspicious. Consequently, it hired a private investigator and surveilled him while he was on intermittent leave twice; both times it did so, he was recorded playing golf. After watching the surveillance videos, the company concluded that his “golf game appeared unimpaired” and “his golf swing was both smooth and powerful” and “without any sign of distress or discomfort.”

The employee was placed on leave. His testimony at a disciplinary hearing was that his shoulders hurt all the time, but he often took his intermittent leave days next to a weekend so that he could “receive the most time for relief from the repetitious work that creates the pain.” As for the golfing issue, the employee said that repetitive motion created more pain than a golf swing because “80 percent of your swing is legs and core,” rather than shoulder action. Believing that “if he could golf, he could work,” the company fired him. He grieved and lost at arbitration, and he then sued for FMLA interference and retaliation, as well as state law discrimination. The district court dismissed his claims on summary judgment, and the Sixth Circuit affirmed.

Interference vs. retaliation. Because the employee did not dispute that he received all the FMLA leave he requested, his claim was not an interference claim, and the appeals court affirmed the district court’s treatment of the claim as one for retaliation. Even if the company may have been hostile towards his FMLA leave, which the employee contended, he had not seen emails manifesting that antagonism during his employment (only after he filed suit), and they didn’t show any interference with or denial of leave. His termination claim too was properly treated as a retaliation claim, again because he received all the FMLA leave to which he was entitled.

Retaliation. The parties agreed that on appeal, the fundamental issue in his retaliation claim was pretext. He argued that the company’s rationale had no basis in fact because from his perspective, he had not abused his FMLA leave. The appeals court disagreed, finding that the company approved his request for intermittent leave for two reasons: to attend medical appointments and to address a “flare-up” of his condition for up to three days a month. Even crediting his explanation of why he stacked his FMLA leave with PTO, or why it did not cause him pain to golf, the employee clearly did not take FMLA leave for “flare-ups” or medical appointments, but by his own admission, he took intermittent leave “because he was in constant pain and would take leave around vacations or weekends to give himself as much rest as possible.”

In the Sixth Circuit’s view, if he had “constant pain that required occasional long weekends to mitigate, he should have requested FMLA leave for that purpose.” It also found no reason to inquire further into whether the employer had an honest belief that the employee had abused his FMLA leave, because he had not shown that the employer’s proffered reason had no basis in fact.