Thanks to our colleague Alison Jacobs Wice for this post
Add another FMLA victory for an employer who terminated a plaintiff based on its “honest belief” that the plaintiff was misusing FMLA leave. The U.S. Court of Appeals for the 10th Circuit affirmed summary judgment for the employer on the plaintiff’s FMLA interference claim. Dalpiaz v. Carbon County Utah (10th Cir. July 25, 2014).
Following a motor vehicle accident, the plaintiff, a benefits administrator, went on leave. Despite her employer’s repeated requests that she submit the FMLA health care certification, the plaintiff finally produced it, some two months after the employer’s first request. Following her block of leave, she returned to modified work, working two hours daily, twice per week.
While the plaintiff was on leave and while on modified duty, her co-workers and some community members reported that she was engaging in activities that seemed inconsistent with her reported injuries and limitations: “playing football with her children, working in her yard, and assisting her children with costume changes and other tasks at lengthy dance rehearsals and recitals.” Numerous employees submitted written statements concerning their observations of plaintiff’s activities.
Based on these reports, the employer directed the plaintiff to undergo an independent medical exam (IME) to confirm that she had been entitled to FMLA. After repeated requests, plaintiff reported that she was unable to schedule the IME because it required a doctor’s referral. The employer terminated her employment.
Rejecting the plaintiff’s FMLA interference claim, the Tenth Circuit held that an “indirect link” between the reason for termination and FMLA is not enough to sustain such a claim. Although the subject matter of the paperwork plaintiff failed to timely return and the IME she failed to take concerned FMLA, it was the failures on which the employer based its action, not the content of the notices and request, the court noted. Responding to the plaintiff’s arguments that some of the witness reports were untrue, the court said:
What is important is not the absolute truth regarding Plaintiff’s state of health, but rather whether the [employer] terminated her because it sincerely, even if mistakenly, believed she had abused her sick leave and demonstrated significant evidence of untruthfulness. And on this record, there is no evidence to suggest the county fabricated these or any of the other reasons given for Plaintiff’s termination in order to justify an attempt to interfere with Plaintiff’s FMLA leave.
We have posted about numerous decisions in which the employer prevailed based on its “honest belief” that the plaintiff was misusing FMLA leave. See posts concerning the bride who took FMLA on her wedding day; the nurse who vacationed in Cancun; the lineman at Octoberfest; and the floater at Pulaski Day.
Among the lessons for employers from these cases is that the “honest belief” defense is powerful and that employers should investigate thoroughly to develop evidence to support that defense.