Relying on the employer’s “honest belief” that the plaintiff had engaged in fraudulent conduct, the U.S. Sixth Circuit Court of Appeals rejected the FMLA retaliation claim of an employee who had requested leave to attend the funeral of her granddaughter, when it was actually her step-granddaughter who had died. The collective bargaining agreement governing the plaintiff’s employment granted paid funeral leave for a grandchild but not a step-grandchild. Hall v. The Ohio Bell Telephone Company (6th Cir. June 17, 2013). Employers relying on the “honest belief” defense where there is suspected leave abuse have prevailed in numerous cases, which we have reported here, here, here and here. To rely on this defense, before terminating an employee for leave abuse, an employer must investigate thoroughly and identify those “particularized facts” on which it will rely.
The plaintiff had claimed that she was terminated in retaliation for taking FMLA leave, noting that the employer’s first investigation into her conduct occurred soon after her first FMLA request. Beginning in September, 2007, the plaintiff had 80 hours of FMLA leave per month due to anxiety disorder. While working for the employer, the plaintiff wrote and self-published two novels. In a newspaper interview a month after she began this FMLA leave, the plaintiff was quoted as saying that publishing a book “takes hard work perseverance, and determination…. [A]re you ready to give up your Saturday or Friday or take off of work to make your dream come true?” The employer investigated the suggestion in the article that the plaintiff may have taken paid FMLA leave to write her book.
Noting that “[n]othing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave,” the Court held that the employer “articulated particularized facts” to support each of its investigations into the plaintiff’s FMLA leave.