Leave Management, Policy, and Compliance

Employer Makes ‘Lemonade’ Out of Employee’s FMLA Lawsuit

To be candid, I wasn’t sure who Beyoncé is. While I know a lot about employment law, I often come up short on popular culture. So it’s fortuitous that an employee in Ft. Worth, Texas was fired for attending a Beyoncé concert while she was on Family and Medical Leave Act (FMLA) leave. In addition to improving my pop culture chops, the case provides a valuable lesson for employers on how and why to terminate an employee who has engaged in protected activity.FMLA

Employee Becomes Overwhelmed in New Job

“Tiffany” was a 14-year employee of BNSF Railway. In late 2015, she relocated from California to BNSF’s headquarters in Fort Worth to start her new job as a marketing manager. Unfortunately, her new job soon proved to be too much for her to handle. On April 1, 2016, she was placed on a performance improvement plan (PIP) over her objections.

On May 2, Tiffany experienced a breakdown, told her supervisor she was having problems, and went to see a doctor. She later e-mailed her supervisor that she was unable to return to work. She was subsequently approved for FMLA leave.

Beyoncé In Concert Is Just the Ticket

BNSF has a luxury suite at AT&T Stadium. It just so happens that Beyoncé was belting out her tunes there on May 9. And Tiffany was in the suite enjoying the show.

Word got back to her boss, who left Tiffany a voice mail asking for a meeting. Three days later, Tiffany responded by e-mail that her doctor hadn’t yet released her to return to work, but once she got the green light to go back, she’d be glad to meet. The boss shot back an e-mail stating that she needed to talk to Tiffany by close of business that day and failing to show up could lead to her termination.

There was radio silence from Tiffany, and—true to its word—BNSF fired her for failing to meet its performance expectations, attending the concert while she was on leave, and refusing to communicate with her boss. An FMLA lawsuit followed.

Strike 1: No Interference Claim

The FMLA prohibits an employer from interfering with an employee’s right to take FMLA leave or enjoy the benefits of the Act. Tiffany argued for capital punishment for her former employer based on a textbook case of interference: She went on FMLA leave, she got fired, and—voilà!—there’s an “interference” claim.

The court wasn’t in a buying mood, noting, “An employee who requests or takes leave under the FMLA is not entitled to any greater rights or benefits than [she] would be entitled to had [she] not requested or taken leave. . . . An otherwise proper termination precludes entitlement to leave.” In other words, you don’t get a pass on explaining why you went to see Beyoncé when you were ill. The court continued:

The . . . evidence [shows] that [BNSF] suspected [Tiffany] of committing fraud, that is, claiming a benefit to which she was not entitled. [BNSF] attempted to investigate, but [Tiffany] refused to cooperate[,] leading to her termination. [BNSF’s] honest suspicion of abuse is sufficient to defeat [Tiffany’s interference claim].

Strike 2: No Retaliation Claim

The FMLA also prohibits an employer from retaliating against an employee for taking leave. Here, the court noted that even if the BNSF supervisor was incorrect in her assessment of the situation, her honest belief that Tiffany abused her FMLA leave was a legitimate nondiscriminatory reason for the termination. And because Tiffany had no evidence that the supervisor’s belief wasn’t honestly held, her retaliation claim got tossed.

Strike 3: No Disability Claim

Tiffany also tossed into her lawsuit salad a claim for disability discrimination under the Texas Labor Code. That claim was likewise dismissed because she had no evidence that her termination was based on anything other than the employer’s stated reasons. Jackson v. BNSF Railway Company (N.D. Tex., 2017).

In Tune with the Law

Notice what the employer did here. It could have gone off like a loose cannon and said, “Beyoncé concert? In our luxury suite? She’s playing us for a fool and she is so fired.” But it didn’t. Instead, its supervisor tried to find out from the employee if there was something the company needed to know, and when she didn’t provide an explanation for her behavior, it gathered its documentation and pulled the trigger on her termination.

A number of years ago, I represented an employer in a workers’ compensation retaliation lawsuit. The insurance company, for a variety of plausible reasons, thought the employee was faking his back injury and had him tailed by a private investigator. And sure enough, he was caught playing basketball.

I later learned that the manager thundered. “He is a cheat. Fire him.” And the employee was fired. Problem was, he had a doctor’s note that stated he needed to lose weight and recommended that he engage in modest physical activity, like playing b-ball. All the video showed was that he had a very weak three-point shot. Remember: Once you fire someone, you lose control of the situation. Play it smart.

Michael P. Maslanka is an editor of Texas Employment Law Letter and can be reached at Michael.Maslanka@FisherBroyles.com.