In an interesting federal district court case currently awaiting jury trial in Tennessee, the plaintiff claims that the termination of his employment at a Tennessee hospital was in retaliation for exercising his rights under the Family Medical Leave Act (“FMLA”). The hospital that formerly employed him asked the court to grant summary judgment, arguing that the case is too weak to go to a jury. The plaintiff had been terminated after he had called into work two days in a row, claiming back and hip pain and stating that he was going to use FMLA leave—only to be seen on both of those days attending a conference in another town at which he had prearranged to be present well before calling his supervisor about his alleged back and hip pain. The hospital argued that for this reason it sincerely believed that he had been lying and terminated him for that reason and not in retaliation for his use of FMLA leave. However, the court ruled that the case could proceed to trial. While a sincere belief that he had been lying would be a valid legal basis for termination, the court determined that a reasonable jury could find that this asserted reason was actually pretextual because the plaintiff’s management team had not engaged in any further investigation into his alleged pain or whether attendance at the conference was consistent with him being on FMLA leave for back and hip pain. It is, after all, permissible to take vacation during FMLA leave: an employee need not sit at home for the duration of the leave if other activities are consistent with the purpose of the leave.
Employment law defense attorneys will naturally, and perhaps justifiably, view this as another failure by a court to dispose of a meritless case. After all, none of the evidence cast any plausible doubt on the sincerity of the management team’s belief that the plaintiff had been lying, and the belief was reasonable. Holding a sincere and reasonable belief that an employee had lied is a legal basis for termination, as the court acknowledged. As most people would agree, and as surveys about academic dishonesty seem to confirm, this kind of dishonesty is very common. No legal requirement bound the management team to investigate the dubious possibility that (1) attendance at the conference was consistent with experiencing severe back and hip pain, and (2) despite having prearranged to be at the conference, the plaintiff would have come to work rather than calling in if he had not in truth experienced severe back and hip pain on the very same two days as the conference.
While many would say that summary judgment should have been granted on this claim, the court implies that it would have been better, prior to terminating the plaintiff, to conduct just a bit more investigation. That’s not to say that the court would have necessarily required the hospital to advise him in writing of the basis for its suspicions and invite him to consult with an attorney before responding. Although pleasing every court is never easy, a targeted question, like “How did you spend your time while you were taking FMLA leave?” might have either confirmed the suspected dishonesty or elicited further dialogue about how he could attend the conference with his stated pain. While asking questions like this might occasionally enable the cleverest liars to come up with a plausible story, affording employees the opportunity to explain themselves will more often tend to garner favor with employees, courts and juries.
Practical Takeaways
- Courts will not necessarily assume that employees taking FMLA leave and other kinds of medical leave are required to stay at home for the duration of the leave.
- Other courts, employees and juries may have similar views on allowing employees to state their perspectives about apparent bad behavior.
- These conversations should also be carefully documented, or possibly even recorded, in compliance with the particular jurisdiction’s rules about recording conversations.
- An employee’s explanation need not be believed, but the employer’s belief that they are lying is not going to eliminate the risk of liability.
Should you have any questions, please contact:
- M. Brian Sabey at (720) 282-2025 or briansabey@wp.hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
