By Alex J. Reganata and Daniel B. Klein
Seyfarth synopsis: Husband and Wife worked for the same employer, and both took FMLA leave for periodic flare-ups of their respective serious health conditions. The outside FMLA administrator notified the employer that Husband and Wife had frequently taken overlapping periods of FMLA leave. Under the employer’s FMLA policy, providing false or misleading information relating to an FMLA leave is cause for disciplinary action. After an investigation, the employer suspended both for providing false or misleading information regarding leave requests. Husband sued the employer for interference with and retaliation for exercising his FMLA rights. The Seventh Circuit affirmed summary judgment for the employer, finding the evidence was sufficient to support the employer’s honest suspicion of FMLA abuse, and held an employer does not need surveillance evidence in order to have an honest suspicion of FMLA abuse.
Husband and Wife, who were both employees of FCA US LLC (“FCA,” formerly Chrysler), each took intermittent FMLA leave in 2017. FCA had a rule against providing false or misleading information when submitting an FMLA leave request. Husband requested FMLA leave for anxiety, depression, and back pain; and Wife requested FMLA leave for flare-ups of irritable bowel syndrome. Based on the paperwork submitted by their medical providers, FCA’s third-party administrator, Sedgwick, granted every leave request that Husband and Wife submitted in 2017.
In December 2017, Sedgwick reached out to FCA. Sedgwick had noticed a significant pattern of overlap in the couple’s FMLA leave dates – in fact, there were 21 common days of absence and an additional 27 days on which partial-day leave requests overlapped. FCA investigated the couple. During the investigation, Husband stated that Wife’s irritable bowel syndrome flare-ups would trigger his anxiety 20-30% of the time and that his medical conditions would also randomly intensify. Wife stated that her irritable bowel syndrome episodes were random and triggered by stressful situations, including Husband’s flare-ups. In other words, each’s condition triggered the others. When asked about the overlapping partial-leave days, Husband said he and Wife carpooled to work about half the time. Neither had any explanation for why their leave requests overlapped as frequently as they did.
The investigation also revealed that greater than 50% of Husband’s FMLA absences and half of his late days were on the same date and at the same time as Wife’s. FCA’s FMLA administrator also noted that Husband and Wife started work within 12 minutes of each other, Husband starting work 12 minutes before Wife. The administrator concluded that the couple had provided false or misleading information regarding their FMLA leave, and both received disciplinary suspensions (Husband’s suspension was for 30 days). A year later, Husband brought this suit against FCA for interference with his FMLA rights and retaliation under the FMLA.
“An Honest Suspicion”
The FMLA provides that an employee is entitled to FMLA rights only if the employee uses their statutory leave “for the intended purpose.” To win at trial on the interference claim, Husband had to show he was denied a right to which he was entitled. To win on the retaliation claim, Husband has to show proof of a retaliatory intent.
Under the FMLA regulations, FMLA interference can include using an employee’s decision to take FMLA leave as a negative factor in employment actions – such as the suspension Husband and Wife faced. An employer who takes action against an employee who takes FMLA leave does not need to conclusively prove that the employee abused his leave rights. Instead, “an honest suspicion will do.”
In this case, the trial judge entered summary judgment for FCA because Husband and Wife did not provide an explanation that accounted for the more than 50% overlap in FMLA leave between the two’s requests. At best, their explanations provided for only a 20-30% overlap. This fact, coupled with the couple providing no explanation for the frequency of the common dates and times of their FMLA absences, allowed FCA to conclude that the couple had given false or misleading information to FCA regarding their 2017 FMLA leave, in violation of FCA’s employee standards of conduct.
No Surveillance Required
Husband argued that FCA needed to have more concrete evidence of FMLA abuse. He pointed to one case – Vail v. Raybestos Products Co. – for this assertion. In Vail, the employer was suspicious that an employee was using FMLA leave to work at her husband’s lawn-mowing business because her leave requests had increased during the summer and fall mowing season. The employer hired an off-duty police officer who witnessed the employee mowing lawns on a morning that coincided with the employee’s back-to-back leave requests for migraines. That evidence was sufficient to support the employer’s honest suspicion of FMLA abuse. Husband argued that FCA’s evidence was nowhere near the level as that in Vail.
But the Seventh Circuit rejected his arguments, holding that Vail did not raise the bar for FMLA-abuse investigations to require surveillance evidence before disciplining an employee for abusing FMLA leave. Instead, it held that because Husband presented no evidence that would suggest that FCA’s suspicion was not genuine, summary judgment against Husband on the interference claim was appropriate.
Husband’s retaliation claim was next to fall. Husband could not prove discriminatory intent where FCA had an honest suspicion that he abused the Company’s FMLA leave rule against providing false or misleading information regarding FMLA leave.
While this decision may be lamented by private investigators, it will surely be celebrated by employers.