On the day of her evening wedding, plaintiff called in and asked for a vacation day. When her request was denied, she said she would take an FMLA day instead. Since plaintiff had previously been approved for intermittent leave for migraine headaches, the employer approved her request.

A few weeks later, the plaintiff gave the company a copy of her marriage license to update her personnel records with her new married name. The employer noticed that the date of plaintiff’s marriage was the same day she had been granted intermittent leave.

During the ensuing investigation, plaintiff admitted she had planned to go to court to obtain a marriage license during the hours of her shift on her wedding day and had done so. The employer concluded that plaintiff had been dishonest in requesting FMLA and paid sick time on that day. The company terminated her for violating the company’s code of business conduct, which required employees to act honestly with respect to their use of company benefits.   

In rejecting the plaintiff’s FMLA claims, the court said that the employer had established that it had an “honest belief” that the plaintiff had misused FMLA leave. An employer has an “honest belief” in the reason for discharging an employee when it reasonably relies on the “particularized facts that were before it at the time the decision was made,” the court said.  Durden v. Oho Bell Telephone Company (N.D. Ohio April 2, 2013).

We have posted here, here and here about employers who have prevailed in FMLA cases by relying on the “honest belief” defense. To rely on this defense, before terminating an employee for FMLA abuse, an employer must investigate thoroughly and identify those “particularized facts” on which it will rely.