Employees Taking Leave: Third Circuit Adopts New Defense That May Impact Employee FMLA Claims
The Federal Family and Medical Leave Act (FMLA) provides qualified employees of both nonprofit and for-profit companies up to 12 weeks of unpaid leave per year to deal with a “serious health condition” or to care for certain family members with a “serious health condition.” In most instances during a period of FMLA qualified leave, an employee’s job is protected and their employment cannot be terminated.
In order to qualify for FMLA leave, an employee must work for an employer with at least 50 employees within a 75-mile radius. The employee must have worked a minimum of 1,250 hours within the previous 12 months and must have been employed for a minimum of twelve months. An employee may have two potential claims under the FMLA. The first type of claim is known as an “interference” claim. The second is known as a “retaliation” claim.
Capps vs Mondelez Global
Recently, the U.S. Court of Appeals for the Third Circuit addressed an FMLA retaliation claim and concluded that an employer’s honest belief that an employee-committed misconduct can now serve as a defense to a retaliation claim under the FMLA. With this decision in Capps vs. Mondelez Global, LLC, the
Third Circuit joins the Seventh, Eighth and Tenth Circuits in providing employers with such a defense.
In the Capps case, Mondelez (the employer) fired Fredrick Capps for what Mondelez believed to be dishonest use of intermittent FMLA leave. Capps suffered from a medical condition that required him to undergo bilateral hip replacement in 2003. Following the surgery, he exper-ienced flare-ups that caused him severe pain, which sometimes lasted for days or weeks at a time. As a result of his condition, Capps requested intermittent FMLA leave to cover his time away from work.
On Feb. 14, 2013, Capps told his employer that he would not be in to work because he was experiencing pain caused by a flare-up of his condition. Later that same day, Capps drove to a bar where he got something to eat and a few beers. Later while driving home, he was pulled over and arrested for Driving Under the Influence of Alcohol (DUI). After being released from jail the next morning, Capps again called off work using intermittent FMLA leave because he said he was exper-iencing leg pain from his condition.
When Capps returned to work, he did not report his DUI arrest. However, over the next several months, he called off work numerous times and requested intermittent FMLA leave for his leg condition. However, during this same time period, Capps was required to attend court hearings and other appointments related to his DUI charge.
On Aug. 7, 2013, Capps pleaded guilty to the DUI. When his employer became aware of Capps’ conviction, an investigation commenced looking into Capps’
attendance from the time of his DUI arrest to his guilty plea. This investigation uncovered that Capps’ arrest date and several subsequent court dates corresponded with days that Capps had also used intermittent FMLA leave.
Misuse of FMLA
Subsequently, Capps was discharged based on his violation of the company’s Dishonest Acts Policy and misuse of FMLA leave. The termination letter sent to Capps stated: “You claimed to be out due to… FMLA related issues on multiple dates. The documentation you produced does not support your claim of… FMLA-
related absences.” After his termination, Capps filed suit claiming (among other things) that the employer retaliated against him for exercising his rights under FMLA.
After having his FMLA retaliation claim dismissed on summary judgment, Capps’ argued on appeal that the District Court improperly dismissed his claim because the employer was mistaken in its belief that Capps misused his FMLA leave or was otherwise dishonest. However, the Third Circuit affirmed the dismissal of Capp’s FMLA retaliation claim emphasizing that an FMLA retaliation claim requires proof of an employer’s retaliatory intent.
While employers should always proceed with caution before terminating an employee around the time he or she
requests, takes or returns from FMLA leave, the Third Circuit’s adoption of the honest belief defense provides a significant means for employers to defend against FMLA retaliation claims. More specific-ally, employers that discharge an employee based upon an honest belief that the employee is abusing FMLA leave may now be more likely to prevail on a motion for summary judgement.
In summary, before any decision is made to terminate, employers must be sure that there is supporting evidence of the employer’s honest belief. In this case there was a thorough investigation of the
employee’s absences along with an opp-ortunity for the employee to explain and support his actions. Where, such as here, the employer has supporting evidence and reasonably believes that an employee abused FMLA leave or was otherwise dishonest about the need for such leave, this honest belief will serve as the employer’s defense to a FMLA retaliation claim.
Jamie Ray-Leonetti, Esq. is a staff attorney with the Philadelphia-based Disability Rights Pennsylvania. She is also a regular contributor to NonProfit PRO, writing the Legal Matters column.