Employee Fired for Mendacity About FMLA Depart Can Nonetheless Sue Employer

In an interesting case in federal district court currently pending in Tennessee, plaintiff alleges that termination of his employment at a Tennessee hospital was in retaliation for exercising his rights under the Family Medical Leave Act (“FMLA”). The hospital where he used to work asked the court to issue a summary judgment on the grounds that the case was too weak to stand before a jury. The plaintiff was fired after calling to work two days in a row, claiming back and hip pain, and explaining that he would be taking FMLA vacation – only to watch a conference in another city on those two days , at which he had arranged his presence long in advance before calling his supervisor about his alleged back and hip pain. The hospital argued that it was because of this that it sincerely believed he had lied and terminated him for that reason, and not in retaliation for taking the FMLA vacation. However, the court ruled that the case can go to court. While a sincere belief that he had lied would provide a valid legal basis for dismissal, the court ruled that a reasonable jury could determine that the alleged reason was in fact a pretext as the plaintiff’s senior management had no further investigation into his alleged pain or whether attending the conference was compatible with his FMLA leave of absence due to back and hip pain. After all, vacation is permitted during the FMLA vacation: An employee does not have to sit at home for the duration of the vacation if other activities are compatible with the vacation purpose.

Labor lawyers, of course, and perhaps rightly, will see this as yet another failure of a court to rule an unsubstantiated case. Finally, none of the evidence cast a plausible doubt on the sincerity of the management team’s belief that the plaintiff had lied, and the assumption was reasonable. A sincere and reasoned belief that an employee lied is a legal basis for dismissal, as the court recognizes. As most people would agree, and as surveys seem to confirm academic dishonesty, this type of dishonesty is very common. No legal obligation required the management team to investigate the dubious possibility that (1) attending the conference was compatible with severe back and hip pain and (2) the plaintiff would have come to work instead of calling despite prior agreement, if he hadn’t had severe back and hip pain during the two days of the conference.

While many would say that a summary judgment should have been given on this lawsuit, the court implies that it would have been better to do just a bit more investigation before dismissing the plaintiff. This is not to say that the court insisted on urging the hospital to write to him about the basis of his suspicions and to see a lawyer before answering. While it is never easy to please any dish, a targeted question like “How did you spend your time during your FMLA vacation?” Would either have confirmed the suspected dishonesty or sparked another dialogue about how to deal with his stated pain could attend the conference. While such questions can occasionally help the brightest liars come up with a plausible story, it will be more popular with staff, courts, and juries to allow staff to explain themselves.

Practical takeaways

• Courts do not necessarily assume that workers taking FMLA and other types of sick leave must stay home for the duration of the leave.
• Other courts, staff, and juries may have similar views when it comes to allowing staff to express their views on manifestly bad behavior.
• These conversations should also be carefully documented, and possibly even recorded, in accordance with the jurisdiction’s requirements for recording conversations.
• A worker’s statement does not have to be believed, but convincing the employer that he is lying will not eliminate the risk of liability.