Wrong about FMLA abuse? Your honest belief counts
The 3rd Circuit Court of Appeals, which covers Pennsylvania, recently handed a victory to employers that struggle with employees who misuse FMLA leave—particularly intermittent FMLA leave.
The court held that an employer’s honest belief that its employee misused FMLA leave was sufficient to defeat an FMLA retaliation claim, even if the employer was mistaken. (Capps v. Mondelez Global, 3rd Cir., 2017)
Mondelez Global, an international food manufacturer, has an FMLA policy that states, “submission of false information to the Company regarding the need for FMLA leave, or the fraudulent use of FMLA leave, may result in discipline, up to and including termination.”
The company’s policy titled “Dishonest Acts on the Part of Employees” states, “The Company will not tolerate dishonesty on the part of its employees … any employee found guilty of a dishonest act would be subject to dismissal.”
FMLA dishonesty discovered?
After having hip replacement surgery in 2003, Fredrick experienced severe pain in his pelvic region, thighs and hips that sometimes lasted for weeks. During these flare-ups, Mondelez granted him intermittent FMLA leave.
On Feb. 14, 2013, Fredrick took the day off because of his medical condition. That evening, he went to a pub and became severely intoxicated. On his way home, he was arrested for drunk driving and spent the night in jail. He was scheduled to work the next afternoon, but called off again, complaining of leg pain. Approximately six months later, he pled guilty to the DWI charge and served 72 hours in jail immediately following the guilty plea hearing.
Mondelez’s HR manager read about Fredrick’s arrest and conviction in the local newspaper. The company investigated and learned that the date of the arrest and subsequent court dates coincided with dates when he had taken intermittent FMLA leave. He was terminated for violating the company’s dishonesty policy.
Fredrick sued, claiming, among other things, that the company violated the FMLA by firing him in retaliation for taking leave. The lower court granted summary judgment to Mondelez, ruling it acted on an honest belief that Fredrick had misused his FMLA leave.
‘Good faith’ wins appeal
On appeal, the 3rd Circuit agreed with the district court that Fredrick had failed to demonstrate that the proper use of his FMLA leave—a protected activity—was causally connected to his termination.
Significantly, the court also found that, even if Fredrick could have established a prima facie case of FMLA retaliation, the company met its burden of demonstrating a legitimate, nondiscriminatory reason for his discharge—the fact that he was terminated for misusing FMLA leave in violation of the company’s Dishonesty Policy.
The court noted that the “critical inquiry in discrimination cases like this one is not whether the employee actually engaged in the conduct for which he was terminated, but whether the employer in good faith believed that the employee was guilty of the conduct justifying discharge.”
The court concluded that it is enough for the employer to provide evidence that the reason for the adverse employment action was an honest belief that the employee was misusing FMLA leave, regardless of whether that belief turned out to be true.
Consistent with other circuits
This holding is consistent with decisions in the 7th, 8th and 10th Circuit Courts of Appeals, which have all applied the “honest belief” rule to cases involving FMLA leave.
However, the 6th Circuit has adopted a modified version of the “honest belief” rule, requiring employers to show that their legitimate business reason not only is honest but also is “reasonably based on particularized facts.”
The 3rd Circuit’s decision also is consistent with decisions of the court in other types of discrimination claims. For example, the 3rd Circuit stated, in an age-discrimination case that, “we do not sit as a super-personnel department that reexamines an entity’s business decisions. … ur inquiry is limited to whether the employer gave an honest explanation of its behavior.”
Likewise, in a Title VII case, the appeals court held that a plaintiff cannot discredit an employer’s proffered legitimate, nondiscriminatory reason for termination by “simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.”
Although the “honest belief” rule provides some solace to employers that sincerely believe their employees are misusing FMLA leave, employers should tread carefully in invoking this defense. Before terminating for FMLA abuse, make sure that you have objective evidence of misconduct. In most cases, courts will leave it to a jury to decide whether the employer’s belief was, in fact, truly honest.
Tracey E. Diamond is of counsel in Pepper Hamilton’s Philadelphia office.