Jonathan Mook (one of our intrepid Virginia Employment Law Letter editors) and I recently taught a Family and Medical Leave Act (FMLA) Master Class. As with all of our FMLA classes, the major concern among the participants was how to curb abuse and prevent claims. One of the recent cases we discussed involved Todd, the compulsive gambler. His case teaches us what careful employers can do to prevent abuse and avoid liability.
Mastering HR Report: FMLA
Losing at gambling can be depressing
Todd had worked for his employer for 11 years without incident. However, in 2008, he began to gamble, and he wasn’t a casual gambler. By 2009, he had achieved “Top Level” status at Caesars Atlantic City Hotel and Casino, which meant he had to wager at least $500,000 in any one year. He was employed as a cable splicing technician, making his wagering amount even more impressive (or depressive, as the case may be).
Todd began to suffer severe depression, migraines, and stress-related anxiety. He even became suicidal at times. He applied for intermittent leave of one to three days at a time under the FMLA, to be used as needed over a period of 18 months. His employer approved the request, and he began taking the leave as needed. In fact, he used his leave extensively throughout the FMLA certification period.
Todd’s employer never questioned the approval of the intermittent leave, never attempted to prevent him from taking leave, and never complained about his taking leave. In other words, the employer did nothing to interfere with his rights under the FMLA. But Todd abused those rights.
He took FMLA leave during a four-day period while he was staying at Caesars gambling. During that time, he called in “sick” each morning and said he would return to work the next day. He didn’t decide he was too “depressed” to work until right before he made the call each day. His supervisor became concerned and made a visit to his home to check on him but found he wasn’t there and there was mail spilling out of his mailbox. The employer suspected that he was gambling in Atlantic City and, after calling several casinos, found him at Caesars. Todd admitted he was at Caesars, and his supervisor said they would talk about it when he returned to work.
When Todd returned, his employer conducted an informal investigatory hearing. Todd admitted he had been gambling in Atlantic City during his FMLA leave and had done it previously as well. His supervisor informed him that the company couldn’t accommodate leave requests to gamble because the reason for the leave didn’t have anything to do with his gambling. Todd responded, “I told you how much I lost. That’s depressing.”
Employee is on a losing streak
Todd’s employer terminated him for defrauding the company out of sick leave by calling out sick while he was gambling. The employer had an extremely generous policy of providing unlimited paid sick leave. Todd then sued the company for interference with his FMLA rights and for retaliation by terminating him for taking FMLA leave.
The court easily rejected Todd’s interference claim. His employer did everything by the book. The company followed all the regulations for providing notice to him and did nothing to interfere with his right to take FMLA leave.
The termination claim required further consideration, however. Because Todd’s termination occurred soon after he took his FMLA leave, the court found there was an inference of causation between the leave and the decision to terminate him. The court looked at whether there was any evidence to establish that the employer’s legitimate nondiscriminatory reason for terminating him was a pretext to hide retaliation.
Todd relied heavily on the fact that his employer’s written approval of the leave didn’t restrict his activities while he was on leave. He took the position that because the approval didn’t say he couldn’t gamble on leave, he was free to take a gambling vacation. The court applied the rule of “common sense” and rejected his argument. According to the court, “taking time off to enjoy a minivacation gambling is not conceivably within the bounds of FMLA leave.” The court also affirmed employers’ right to ensure that employees out on leave don’t abuse their leave. Campbell v. Verizon Virginia, Inc., 2011 WL 4073143 (E.D. Va., Sept. 13, 2011).
The way I see it . . .
This case is a good — and extreme — example of how employees abuse FMLA leave. However, the focus should be on the employer in this case. The outcome was due in large part to the fact that the employer did everything right. The company didn’t interfere in any way with the employee’s right to FMLA leave and complied fully with the FMLA’s regulations. When it suspected that he was abusing leave, it confirmed the abuse through an internal investigation and properly documented its legitimate nondiscriminatory reason for terminating him.
This case could have had a different outcome if the employer had acted rashly and simply terminated the employee when it discovered he was at a casino in Atlantic City while on FMLA leave. By taking the extra step of confirming that he had in fact abused the leave, the employer was able to overcome the causation inference created by the timing of the termination.
There’s an old gambling adage that the house doesn’t beat the player — it just gives the player a chance to beat himself. In this case, the employer didn’t take a chance with the FMLA and let the gambler beat himself out of a job.
Michael E. Barnsback, will be presenting an webinar on FMLA abuse and chronic call-ins and fraud on March 15, 2012. He is a partner at DiMuroGinsberg PC, represents Virginia employers in all aspects of employment law. You can reach him at (703) 844-4333.