Employee abuse of intermittent FMLA leave is a common employer complaint. An example of intermittent leave is when an employee occasionally has to take off work because of an ongoing or chronic medical condition. What happens if the employer suspects the employee uses FMLA covered leave to miss work for non-covered reasons, but does not know for sure? What kind of evidence is needed to take action?
The U.S. Court of Appeals for the Third Circuit addressed that question in a recent decision. (Capps v. Mondelez Global, LLC, (No. 15-3839, 1/30/2017). Fredrick Capps worked for the company that makes Oreos and other Nabisco snacks. He suffered from a condition known as avascular necrosis, which causes a loss of blood flow to the bones and tissues, resulting is the death of those cells. In Capps’ case, he developed arthritis in his hips and frequently experienced severe pain in the pelvic region, hips, and thighs, sometimes lasting for days at a time. Capps’ doctor certified he needed full bed rest to recover from these periodic pain episodes, and thus recommended he be completely off work when they occurred. The company granted him the intermittent leave he requested.
One Thursday, February 14, 2013, Capps was scheduled to start work at 1:00 p.m., but called in and said he would be late to work because of leg pain. He called later in the day stating that he was taking a full day off because the pain had not subsided. That same evening, about 6:30 p.m., Capps went to a local pub to get dinner because his wife was out of town and he “didn’t know how to cook.” It so happened some his friend were there, and he ended up staying for 2 ½ hours. Naturally, he had a few beers…and then a few shots. Unfortunately for Capps, a few too many. The police stopped him on the way home. His blood alcohol concentration was more than four times the legal limit. Capps was arrested and put in jail that night, but released the next morning, February 15, 2013. He was scheduled to start work at 1:00 p.m. that day, but called in again, stating that he would be using FMLA leave because of his ongoing leg pain.
By the following Monday, everything was back to normal; Capps reported to work as ususal. He did not report his arrest to the company, nor was he required to do so. He later plead guilty to DUI and was sentenced to three days in jail, which he served in August 2013.
Almost one year after the arrest, in early 2014, an HR Manager at the company learned from a newspaper article about Capp’s DUI conviction and jail sentence. He decided to investigate Capps’ attendance record to determine if he had been absent during the time frame of the arrest and conviction.
The HR Manager reviewed the criminal court docket to try and determine the dates Capps’ had court dates, and compared them to dates he used FMLA leave. The HR Manager was not an attorney and did not understand the meaning of all the docket entries. But, he concluded Capps had used FMLA leave on the date of his arrest and the day after, as well as two dates he appeared in court. When confronted with this information, Capps denied he had improperly used FMLA leave. Capps later produced a undated notes from his doctor stating that he had taken time off on the days in question because of hip and leg pain. Capps claimed he waived his right to appear in court on the dates the docket showed he had court dates, because he was actually at home suffering from pain flare ups. The company was suspicious about the authenticity of the doctor’s letters. The employer terminated Capps for FMLA abuse and dishonesty in reporting about his FMLA leave, all of which violated company policy.
Capps sued for FMLA interference and retaliation, as well as failure to accommodate a disability under the ADA. One of the key issues in the case was whether the employer had enough evidence to terminate in light of Capps’ claim there was a medical need for using leave on the dates in question, and his denial he appeared in court on the dates the docket showed he had court dates. Noting that FMLA retaliation requires proof of the employer’s retaliatory intent, the court found that the employer’s honest belief the employee was misusing FMLA leave was a legitimate, non-retaliatory justification for the discharge. Even if the employer was wrong in its belief, so long as it was honest, it is enough to defeat the claim. In this case, Capps did not have enough evidence to show the company’s belief about his FMLA abuse was not an honest belief, and so his claim was dismissed.
The Capps case is a good reminder that absolute certainty the employee is abusing FMLA is not required before taking action. It is also important to remember, however, that simply having a hunch or subjective belief abuse is occurring is not good enough to prove the belief was honest. Rather, the employer should rely upon facts: facts to support your belief, but also facts indicating the employee’s position is not believable. In this case, it was enough that the HR Manager relied on the court docket showing when Capps was supposed to be in court, and that the employee produced a doctor’s note that was suspicious because it was undated and contained information that normally wouldn’t be expected from a doctor.
Image Credits: from Google, Creative Commons license, Oreo Two Cookies; Honesty is the Best Policy, Rick Harrison