Leave Management, Policy, and Compliance

People Notice When You’re Gone: Absent Employee’s Work Scrutinized

The U.S. Court of Appeals for the 6th Circuit—which covers Kentucky, Michigan, Ohio, and Tennessee—recently overturned a jury verdict in favor of an employee who claimed she was retaliated against for exercising her right to take leave under the Family and Medical Leave Act (FMLA). The court found that the employer had flawed but still strong evidence of misconduct by the employee, and the coworkers whose actions supposedly led to the retaliatory action had insufficient input into the termination decision.



“Felicia” worked for Dow Chemical Co. Her direct supervisor was “Harvey,” but she primarily performed administrative support duties for an attorney, “Martin,” and a paralegal, “Heather.”

In April 2013, Felicia informed her team that she would need time off for surgery in late May. At about the same time, Heather noticed that she was leaving work earlier than normal and began to record her arrival and departure times. Felicia was permitted to take off every other Friday, but only if she had worked 80 hours during the previous 9 workdays.

Felicia’s medical leave began on May 28, 2013. In July, she reported that she needed an additional 4 weeks off. She returned to work part-time on July 29 and resumed a full-time schedule on August 20. Her entire leave was approved and covered by the FMLA.

While she was absent, Martin developed concerns about Felicia’s work. For instance, an intern asked him for help in completing a project that had been assigned to Felicia but should have been finished months earlier. He also discovered that Felicia had filled out invoices incorrectly. When he asked Heather about Felicia’s work, she stated that she didn’t assign Felicia much work because of her concerns that it wouldn’t be done correctly. She also informed Martin about Felicia’s late arrivals and early departures.

When a coworker told him about seeing Felicia and mentioned that she seemed to have a full range of motion and “felt good,” Martin began to suspect that she didn’t really need extended leave. He reported his concerns to Harvey and suggested that Harvey hold an employee review meeting (ERM) with Felicia. Harvey refused, allegedly stating that he wouldn’t hold an ERM while Felicia was on FMLA leave because of the risk that she might file a lawsuit.

Harvey later denied ever considering an ERM with Felicia for any reason. In response to Martin’s concerns, he merely asked her to reconfirm her need for leave. Martin apparently made it known that he preferred that Felicia be terminated and a recently hired employee be kept, but Harvey took no such action.

After Felicia returned from leave, Martin and Heather continued to monitor her schedule. In September, Martin sent Harvey the following e-mail:

[Harvey], I have an update for you. [Felicia] is taking her AFO [alternate Friday off] today. My understanding is that, in order to get an AFO, one must work an extra hour (approximately) on the other workdays of the two-week period. So far as I can determine, [Felicia] has not been doing that. She has been arriving after 8 AM (usually in the range of 8:05 to 8:15), and usually leaves by 4 PM. Per [Heather], [Felicia] has been taking at least an hour for lunch each day, which means the 4 PM departures (or earlier) do not constitute the use of her lunch hour. So instead of working approximately 9 hours per day to qualify for the AFO, she has mostly been working slightly less than 7 hours per day. And she still took the AFO. At first glance, this would appear to be time card fraud. It would be the second identified instance. (The first would relate to [a coworker’s] account, when [Felicia] was off work.) [Felicia] is no longer on medical restrictions, so that is no longer an issue.

It also appears that [Heather], [a coworker][,] and I have all noted that when [Felicia] is in the office, she spends an unusual amount of time doing things other than work. I have seen [Felicia] texting a lot. [Heather] says [a coworker] has encountered [Felicia] doing Facebook on several occasions. Granted, everyone does some amount of personal stuff, and that’s OK. But we really don’t see a lot of work output from Felicia.

Meanwhile, [a coworker] is doing most of [Felicia]’s work. [A coworker] is largely past the learning curve, and is out-performing [Felicia]. And [the coworker] is looking for other jobs so that she can get benefits.

Do we have enough now to take action? Please?

Martin’s e-mail prompted Harvey to investigate and compare Felicia’s “gate records,” which showed her arriving at and leaving work, to her time cards, which indicated when she was working. He found a 60-hour discrepancy. When he asked Felicia to explain the discrepancy, she claimed she worked at home every night for 2-½ hours. However, she claimed the company computer network wouldn’t show all of her remote work because she didn’t always log in while she was doing the work.

Harvey didn’t believe Felicia’s explanation, and he placed her on suspension. He then investigated and confirmed that she had logged in to work remotely only twice in 6 weeks. He then scheduled an ERM. The participants/decision makers were Harvey, two HR representatives, a neutral manager, and an attorney. After considering only the gate records, time cards, network login records, and Felicia’s explanation, the group decided to terminate her.

Felicia sued in the U.S. District Court for the Eastern District of Michigan, claiming that because the scrutiny of her arrivals and departures began only after she requested FMLA leave, it constituted evidence of a retaliatory motive. She also argued that the 60-hour discrepancy discovered by Harvey was inaccurate because the company had rounded up some numbers and included some vacation days in the figure. Since it wasn’t accurate, she argued, it was evidence generated to hide illegal retaliation.

Felicia pointed to Martin’s request for an ERM while she was on leave and his later e-mail as additional evidence of a desire to retaliate against her. Finally, she cited Harvey’s alleged concern that she might file a lawsuit if he held an ERM while she was on FMLA leave as evidence of the company’s desire to hide its retaliatory motive.

A jury agreed with Felicia and awarded her damages. Dow asked the trial court to throw out the award, but the court ruled that there was sufficient evidence of retaliation to support the jury’s verdict. Dow then appealed to the 6th Circuit.

Court’s Decision

In something of a surprise, the 6th Circuit overturned the jury’s verdict. According to the court of appeals, Martin’s and Heather’s conduct didn’t support Felicia’s case because they didn’t participate in the actual termination decision. In other words, they weren’t the decision makers, and the decision makers didn’t consider any information they had provided.

And although it accepted Felicia’s claim that the 60-hour discrepancy in her work hours was inaccurately calculated, the court also accepted the company’s argument that it had an “honest belief” in the numbers. The fact that the numbers were wrong didn’t equate to evidence that Dow retaliated against Felicia for taking FMLA leave.

Finally, the court rejected Felicia’s argument that Harvey’s refusal to hold an ERM while she was on leave should also be viewed as evidence that the company was trying to hide its animus based on her FMLA leave. Instead, the court stated:

To permit an inference of retaliatory animus based on a company’s honest assessment of the potential risk of terminating an employee would unduly hinder frank employment decisions. . . . [There] must be a clear line for the purpose of liability between an employer considering whether an employee may file suit—even though the employer has a legitimate basis to take an adverse employment action—and [an] employer terminating [an employee] based on [her] protected status or engagement in a protected activity.

In short, Felicia was left with only the timing of the extra scrutiny of her work to support her claim, and the court rejected that temporal proximity as sufficient on its own to permit an award in her favor. Hartman v. Dow Chemical Co., Case No. 15-2318 (6th Cir.).

Bottom Line

The reversal of a jury verdict is unusual. Because of the very clear lines drawn between the decision makers and the coworkers who questioned Felicia’s work and the very clear evidence of her misconduct in this case, the court willingly rejected several pieces of alleged “evidence” of retaliation. In the end, Felicia lacked sufficient evidence to support the jury’s verdict.

While employers should follow Dow’s example of establishing and following such clear lines of authority, using an even more independent decision maker (i.e., removing Harvey from the decision-making group) likely would have provided the company even more protection sooner in the litigation.