In the case of Jaszcyszyn v. Advantage Health Physician Network, the Sixth Circuit recently sided with an employer that terminated an employee after it caught her partying at a Polish heritage festival while she was supposedly too disabled to work. It’s a case of Facebook strikes again. The termination was based upon the employer’s belief that the employee was engaging in FMLA fraud.
The whole ordeal came to the employer’s attention after the partying employee was spotted by her Facebook friend/coworker partying it up while her colleagues were at the office covering for her. Naturally, the coworker took the pictures to a supervisor.
The employer gave the employee an opportunity to explain the discrepancy between her claim of complete incapacitation and her partying behavior in the photos. Guess what? The employee didn’t really have a response, was silent, or claimed that she was in pain at the festival and just not showing it. When the employee repeatedly failed to respond or to provide a legitimate justification for her action, the employer terminated her. Following the employee’s termination, someone in HR completed a report that selected “absenteeism/lateness” from a list of six possible reasons for discharge.
The employee filed a lawsuit in the U.S. District Court for the Western District of Michigan alleging that she was fired in violation of the FMLA. Her claims included a count for interference with her right to take leave and a count for retaliation for taking leave. The trial court dismissed the employees’ claim before it went to trial and the employee appealed to the Sixth Circuit.
On appeal, the court found that the employer had not interfered with the employee’s right to take FMLA leave as it had granted her requests for FMLA leave in full. As for the employee’s retaliation claim, the court found that the employee offered little or no evidence linking her termination to activity protected by the FMLA. Moreover, even though the person in HR had checked “absenteeism” on the form rather than “fraud” the court was not persuaded that the employee’s mere use of leave was the reason for her termination. The court specifically said that selecting absenteeism on a standardized form did not establish that the employer’s explanation of the firing was a pretext for unlawful retaliation. Rather, the court found that the employee never refuted the employer’s honest belief that the employee’s partying at the Polish heritage festival was inconsistent with her claims of disability. Therefore, the employee could not show that the employers legitimate reasons for terminating the employee, i.e., her fraudulent behavior, was a pretext.
Employer Tip: Employers should be aware of the sensitive issues that surround terminating employees while they are on FMLA leave. While this case ended well for the employer, the employee might have had less fodder for her lawsuit if the HR person had not checked “absenteeism”, but had rather written “fraud” on the form. It is recommended that you consult with an attorney before making such decisions. The attorneys at Harmon & Davies are here to advise employers on all Employment and Labor Law matters.
This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.
