Employees who lie about a medical condition to take protected leave under the Family and Medical Leave Act (“FMLA”) can be fired for dishonesty. Moreover, even if an employer legitimately believes that the employee committed fraud to get FMLA leave, a claim for FMLA retaliation may fail.
How do you state a claim for FMLA retaliation?
An employee can prove FMLA retaliation in two different ways. The first way is to present direct evidence that the decision maker fired the employee for using or requesting FMLA – such as through an email, recorded conversation, or another manager testifying about the decision maker’s admission.
Absent direct evidence, the burden of proof follows the so-called McDonnell Douglas burden-shifting framework. To establish a prima facie case of FMLA retaliation under the McDonnell Douglas analysis, the employee must initially demonstrate the following elements:
- Engaged in protected activity: The employee must present evidence of engaging in a protected activity under the FMLA. This includes requesting or taking FMLA leave for their own serious health condition, the birth or adoption of a child, or to care for a family member with a serious health condition.
- Adverse action: The employee must provide evidence of an adverse employment action taken by the employer. Adverse actions can include termination, demotion, reduction in hours or pay, denial of promotions or benefits, negative performance evaluations, or any other action that negatively affects the terms or conditions of employment.
- Causal connection: The employee needs to establish a causal connection between their protected activity and the adverse employment action. This requires demonstrating that the adverse action was taken in response to the employee’s exercise of FMLA rights. While timing alone is not sufficient, a close proximity between the protected activity and adverse action can support a causal connection.
Once the employee establishes the above prima facie case, the burden shifts to the employer. The employer must then provide a legitimate, nonretaliatory or nondiscriminatory reason for the adverse action.
At this stage, the employee carries the burden of proving that the employer’s proffered explanation is pretextual, meaning it is a cover-up for retaliation or discrimination. The employee can satisfy this burden by showing that the employer’s explanation is not credible or by demonstrating that the employer’s decision was more likely the result of retaliation or discrimination. It is not sufficient to show that the decision maker made an honest mistake nor that the decision maker could have made a better choice of action.
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Can I be fired for lying about the need to take FMLA leave?
Ahhhh, yes.
A recent case out the United States Court of Appeals for the Fifth Circuit illustrates this point. In Adkins v. CSX Transportation, Inc., No. 21-2051, 2023 WL 4035811 (4th Cir. June 16, 2023), CSX Transportation, Inc. (“CSXT”) sent furlough notices to employees at its facility in Huntington, West Virginia on June 16, 2017. According to CSXT’s benefit plans, furloughed employees receive health and welfare benefits for four months, but if an employee is furloughed while on medical leave, they get the same benefits for two years. With this in mind, a self-professed genius hatched a plan for a chiropractor to write a medical report saying that do to a soft tissue injury suffered outside of work, he would need eight weeks off, which would take him through the furlough date and trigger the added benefits. And he might have gotten aways with it had he not felt the need to tell everyone how smart he was.
During June and July 2017, CSXT received 67 “Certificate of Ongoing Illness or Injury” (COII) forms from heir Huntington facility employees seeking to take medical leave. These forms were prepared and signed by either Dr. Shannon Johnson or Dr. Daniel Carey, both chiropractors. The content of the forms was remarkably similar, with minor musculoskeletal conditions being cited as the reason for leave, most injuries stated as occurring off-duty, and generalized medical conditions provided without individualized assessment. All the forms required a minimum eight-week absence from work. CSXT’s Chief Medical Officer, Dr. Craig Heligman, found the volume and similarity of these forms suspicious, raising concerns about potential fraudulent submission and an attempt to extend employees’ health and welfare benefits. Dr. Heligman, with years of experience, had never encountered such an occurrence before.
Dr. Heligman shared his suspicions with CSXT’s Labor Relations team, who reviewed the information and decided to bring charges of dishonesty and fraud against the employees involved. Charge letters were issued to each employee, inviting them to attend a formal investigation and present information in support of their medical requests. Hearings were conducted, and transcripts were created. After reviewing the full record, the Labor Relations team provided recommendations to CSXT Vice President Brian Barr. Collaborating with the team, Barr made the decision to terminate the plaintiffs’ employment for violating the CSXT Code of Ethics. Because the employees were fired and not furloughed, they lost their four months of benefits.
Shortly thereafter, 58 of those employees jointly sued in one lawsuit, claiming FMLA retaliation, among other claims. The United States District Court for the Southern District of West Virginia eventually dismissed all of the claims and an appeal followed.
On appeal, the employees argued that because Dr. Heligman made predetermined conclusions before testifying at the hearing and admitted that there was no conclusive evidence of fraud, they should have been able to move forward with their claims. The United States Court of Appeals for the Fourth Circuit rejected this argument on two grounds. First, the Court held:
The difficulty with this argument is that while Dr. Heligman’s conclusions may have been “predetermined” as of the time of the hearings, that fact does not make the conclusions pretextual. Pretext calls for an inquiry into whether the suspected dishonesty and fraud were the real reasons for CSXT’s decision. And nothing that the plaintiffs have pointed to calls into question whether suspected dishonesty and fraud were Dr. Heligman’s real reasons for pursuing the investigation and employee discipline. Dr. Heligman pursued the investigation of the plaintiffs because of the clear pattern he discerned with the deluge of COII forms in the context of the furlough notices, and surely such evidence well supported his suspicion; indeed, there is no evidence that anything else contributed to his decision. And the fact that Dr. Heligman expressed his concerns consistently throughout the investigation, beginning in the middle of July 2017 and continuing through the August 2017 disciplinary hearings, suggests that a genuine concern regarding potential fraud “truly was the reason for the plaintiff[s’] termination.” Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (quoting DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998)). Moreover, when an employer gives a legitimate, nondiscriminatory reason for terminating an employee, “it is not our province to decide whether the reason was wise, fair, or even correct,” so long as it was the genuine reason for the employment decision. Id. (emphasis added) (quoting DeJarnette, 133 F.3d at 299).
Adkins at *4. (italics in original).
Next, the Fourth Circuit Court of Appeals pointed out that the good doctor actually did not make any decisions regarding the termination of the employees but rather initiated the investigation and gave his medical opinions, including that eight weeks was an unusually long time to take off of work for a strain or a sprain. The Court specifically held:
Even more importantly, it was not Dr. Heligman who made the decision to terminate the plaintiffs’ employment. “In assessing pretext, a court’s focus must be on the perception of the decisionmaker ….” Holland v. Wash. Homes, Inc., 487 F.3d 208, 217 (4th Cir. 2007) (emphasis added) … It was only at the conclusion of the hearings that Vice President Barr, based on the record of those proceedings, made the decision to terminate the plaintiffs’ employment… He explained that he made the decision based on suspected fraud as evidenced by the pattern of similar leave requests in the context of the furlough notices and the employees’ failure to submit additional documentation from other medical providers to substantiate their medical claims in response to the disciplinary investigations. And the plaintiffs have failed to put forward any evidence to suggest that this was not the actual reason for Barr’s decision. Indeed, the plaintiffs elected to present no evidence at the hearings aside from the documentation generated by Dr. Johnson and Dr. Carey.
Id. at *5. (italics in original).
There are a few takeaways. The request for leave looked suspicious when one employee made it but became ridiculously fishy when 67 employees attempted the same stunt. Most judges have common sense and will apply it to make sure that fishy business like this does not happen.
Second, what the heck was the employees’ lawyer thinking??? The moment that this attorney lumped all of these employees together in one suit, there was no way to win. Maybe – although very unlikely – had the attorney pulled out one or two and made sure that they submitted legitimate medical records to the company as part leave process or appeal, one or two of the employees might have ad a claim. Of course, if none of the employees could present legitimate medical documentation, it would have been best for the attorney to advise the employees to avoid a bad claim instead of leading the lambs to slaughter.
Third, as the United States Court of Appeals for the Fourth Circuit held in conclusion: “The FMLA does not prevent an employer from terminating an employee for poor performance, misconduct, or insubordinate behavior.” Id. at *7.
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Was I wrongfully fired because I requested FMLA leave?
The FMLA is a complicated federal law that cannot be fully explained in a blog post let alone applied to your particular situation. If you have been fired, demoted or otherwise adversely treated because you requested or took FMLA leave, you should call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Call our top employment lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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