The 3rd Circuit—which covers Delaware, New Jersey, and Pennsylvania—recently ruled that an employer’s honest belief that an employee misused Family and Medical Leave Act (FMLA) leave can defeat an FMLA retaliation claim, even if the employer’s belief is mistaken. The court also ruled that under certain circumstances, an employee’s request for FMLA leave may constitute a request for a reasonable accommodation under the Americans with Disabilities Act (ADA).
Facts
“Gavin” worked for Mondelez Global, LLC, as a mixer, operating a mixing machine that makes dough. Gavin has avascular necrosis, which had led to arthritis in both of his hips and required him to undergo bilateral hip replacements. He experiences severe pain in his pelvic region, thighs, and hips, sometimes for days or weeks at a time. As a result, he takes intermittent time off work when he has flare-ups.
After his hip replacements, Gavin was certified to take intermittent FMLA leave. He was continuously recertified for intermittent leave until the end of his employment. In support of his request for FMLA leave, his physician certified that he requires full bed rest during his flare-ups.
Because he was experiencing leg pain, Gavin took FMLA leave on February 11 and 12, 2013. He returned to work for a full shift on February 13. On February 14, he again used FMLA leave because of leg pain. He testified in a deposition that his wife was away from home on a business trip that week, and because he doesn’t know how to cook, he had to go out for meals. On the evening of February 14, he drove to a local pub for dinner, where he drank three beers and three shots of alcohol with friends. While he was driving home from the pub, he was stopped by the police.
The police took Gavin to the hospital for a blood test, which showed that his blood alcohol concentration was more than four times the legal limit. He was placed in jail and released early the next morning, on February 15. He was scheduled to work at 1:00 p.m. that day, but he called Mondelez’s FMLA message line to say that he would be taking FMLA leave because of leg pain.
Gavin returned to work the following Monday, February 18. He performed the same work and received the same salary and benefits he had received before his FMLA leave. He didn’t report his arrest to anyone at Mondelez. He was later recertified for FMLA leave through January 30, 2014. On August 7, 2013, he pled guilty to driving under the influence (DUI) and served 72 hours in jail.
In early 2014, a Mondelez HR manager learned of Gavin’s DUI conviction and sentence, and asked two employees to investigate his attendance record to determine if he had any absences during the times of his arrest and conviction. They noticed that Gavin’s arrest date and court dates appeared to coincide with days on which he had taken FMLA leave.
After being confronted with that information, Gavin promised to provide documentation to support his FMLA leave on the days in question, and he eventually submitted letters from his physician and his attorney.
Nevertheless, Mondelez terminated his employment based on his violation of its “Dishonest Acts Policy,” which states, “The company will not tolerate dishonesty on the part of its employees, whether it be committed against the company, another employee, its customers, or others either during or after working hours.” The policy further states that “any employee found guilty of a dishonest act [will] be subject to dismissal.”
Gavin sued Mondelez, alleging claims of interference and retaliation in violation of the FMLA, violation of the ADA, and similar claims under Pennsylvania law. The FMLA retaliation claim alleged that Mondelez terminated his employment in retaliation for his use of FMLA leave. The FMLA interference claim alleged that his termination amounted to a deprivation of benefits and was therefore interference under the FMLA. The ADA claim alleged that Mondelez failed to accommodate his disability.
The district court granted summary judgment to Mondelez, dismissing all of Gavin’s claims without a trial. Gavin appealed.
3rd Circuit’s Decision
The 3rd Circuit affirmed the dismissal of Gavin’s claims. The court of appeals focused primarily on his FMLA retaliation claim. The court concluded that he couldn’t succeed on his FMLA retaliation claim because Mondelez had established a legitimate nonretaliatory justification for his termination: its honest belief that he had misused FMLA leave and had been dishonest about his need for leave.
An FMLA retaliation claim requires proof that the employer had a retaliatory intent. The court of appeals held that an employer’s honest belief that an employee misused FMLA leave is a legitimate nonretaliatory justification for his termination. The “honest belief” rule is the same for other federal discrimination laws, including the Age Discrimination in Employment Act (ADEA) and Title VII.
Applying the honest belief rule, the court concluded that Mondelez had provided evidence supporting its honest belief that Gavin had misused his FMLA leave and was otherwise dishonest, in violation of its policies. In reaching its decision, the court noted that Gavin’s requests for FMLA leave had been approved, he was permitted to return to work after his leave, he returned to the same position with the same benefits each time, and there was no evidence of any animus by Mondelez before it learned of his DUI arrest and conviction.
Gavin argued that Mondelez was mistaken in its belief that he had misused his FMLA leave and had been dishonest, but the court found it sufficient, for purposes of the FMLA retaliation claim, that Mondelez had honestly held those beliefs.
The court also affirmed the dismissal of Gavin’s FMLA interference claim. An interference claim doesn’t involve discrimination; rather it entails whether the employer provided the employee the entitlements he is guaranteed by the FMLA. Gavin’s FMLA interference claim failed because he had received all the benefits to which he was entitled under the FMLA, including the leave he requested and reinstatement to the same position after his leave.
Finally, with respect to Gavin’s ADA claim, the court noted that a request for FMLA leave may qualify, under certain circumstances, as a request for a reasonable accommodation under the ADA. However, even if Gavin’s requests for FMLA leave constituted requests for a reasonable accommodation, Mondelez approved all of them, and he took the requested leave. Therefore, he couldn’t show that Mondelez failed to make a good-faith effort to accommodate his requests for leave.
Bottom Line
While this decision permits you to rely on your honest beliefs about employees’ misconduct when you take adverse employment actions, you should still use caution when terminating an employee who has taken FMLA leave.
It was significant that Mondelez had a written policy prohibiting the dishonest conduct it believed Gavin had engaged in, it investigated and documented its belief that he had violated the policy, and it had approved all of his FMLA requests before it learned of his apparent violations.
The decision should also put you on notice that an employee’s request for FMLA leave may constitute a request for a reasonable accommodation under the ADA. Depending on the circumstances, when a disabled employee requests FMLA leave, you may need to consider other potential accommodations in addition to the requested leave itself.
Howard Fetner is a contributor to the New Jersey Employment Law Letter.