Employer's "Honest Belief" Concerning Employee's Alleged Misuse of Leave Supported Termination

A benefits administrator for the county who was regularly charged with administering employment policies and procedures was involved in a vehicle accident. Thereafter, she obtained medical treatment which required additional time off and modifications to her duties upon return. Approximately seven weeks after the accident, the county asked her to submit a formal request for leave pursuant to the Family and Medical Leave Act (FMLA) in light of the time requested off. The employee did not respond, and the county accordingly notified her that her FMLA leave would commence on the date the forms had been mailed, but that final, official approval for her requested leave had not yet been given.

The employee finally responded, and then returned to work within days with work restrictions. The supervisor had learned that during the employee's absences from work, she was engaging in physical activities which were inconsistent with her claims of injury, and eight employees gave statements to that effect. The supervisor requested that the employee submit to an independent medical examination to confirm that she was, in fact, eligible for FMLA leave. Though the employee was provided with the information to set up the examination, she never did, and was subsequently terminated for failure to timely complete the FMLA forms, failure to schedule the exam, evidence of untruthfulness regarding her ability to work, and abuse of sick leave. 

The employee filed suit, alleging violations of the FMLA. The district court granted summary judgment in favor of the county and the employee appealed. Upon review, the U.S. Court of Appeals for the Tenth Circuit affirmed, finding first that the employee had waived any claim of FMLA retaliation since she only plead an interference claim. With respect to the interference claim, the court agreed with the district court that her claims failed as a matter of law because the county produced sufficient evidence to establish that the employee would have been terminated regardless of her request for FMLA leave. "What is important is not the absolute truth regarding Plaintiff's state of health, but rather whether the county terminated her because it sincerely, even if mistakenly, believed she had abused her sick leave and demonstrated significant evidence of untruthfulness." 

Employers should always take caution when terminating an employee during or immediately following a protected leave. There is no question that these situations present risk. Even though the employer prevailed under these circumstances, protracted litigation was required in order to achieve this favorable result. Employers should accordingly examine all of the circumstances prior to taking an adverse employment action so as to manage any potential risk and exposure.

Dalpiaz v. Carbon Cnty., No. 13-4062 (10th Cir. July 25, 2014) 

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