By Marjorie Johnson, J.D.
An employee who suffered from severe migraines and successfully took FMLA leave for several years, but who was fired after submitting an altered FMLA certification, failed to defeat summary judgment on his claims of disability discrimination and FMLA retaliation. A federal court in Pennsylvania found that he failed to cast doubt on the employer’s assertion that, after an investigation and internal hearing pursuant to a collective bargaining agreement, he was fired for falsifying his FMLA paperwork and not due to his medical condition or FMLA leave (Lavorgna v. Norfolk Southern Corp., October 31, 2017, Hornak, M.).
Several years of no trouble with FMLA leave. The employee did not inform his employer about his medical condition when he was hired in 2005. However, after a safety meeting in 2009, he asked a superior what he should do if he had to “take medication for anything.” The superior told him that he should take time off and suggested he apply for FMLA leave, but did not inquire further. The employee then submitted an FMLA application to the third-party FMLA administrator, which approved his request. He took FMLA leave over the next five or six years without problems. However, when he tried to renew his FMLA application in July 2015, the third-party administrator informed him that the form was incomplete due to, among other things, a lack of medical provider’s job title and initials. He asked the physician assistant who originally filled it out to include her information and resubmitted the form.
“Significant alterations.” However, the new form also contained other “significant” alterations, including stating that he suffered four to six migraine episodes a month requiring one/two days off each, as opposed to previously stating that he only suffered one to two episodes a month requiring one day off each. The FMLA administrator sought clarification from the physician’s assistant, who provided a letter stating that the only change she made to the paperwork was to write in her job title, the date, and her initials.
The FMLA administrator alerted the employer of the situation and on August 21, 2015, the employee was charged with falsifying his FMLA documents and suspended pending an investigation. A hearing was held on August 26, and on September 8 the hearing officer informed him that he was being terminated for falsifying his FMLA paperwork. His union appealed, but the Public Law Board (who had jurisdiction over the dispute under the Railway Labor Act) affirmed the discharge.
Not fired because of migraines. The employee failed to offer any factual support for his conclusory assertion that he was fired because he had migraine headaches. Notably, the third-party administrator processed his FMLA requests and there was no indication that his superiors or other decisionmakers were aware that he suffered migraine headaches prior to the FMLA investigation. Indeed, by the time his supervisor became aware of his medical condition, the third-party administrator had obtained his physician assistant’s letter and told his employer that he likely altered the certification forms.
No suggestion of pretext. There was also no evidence suggesting the reason for his termination―falsifying of his FMLA paperwork―was pretext for disability bias. Both presiding officers at his internal Public Law Board hearings concluded that he falsified his FMLA certification. He also acknowledged that he personally added information to the FMLA form.
No failure to accommodate. He also failed to show that his employer “refused to engage in the interactive process.” While finding it unnecessary to determine whether FMLA leave would be deemed a reasonable accommodation under the ADA, the court noted that he enjoyed several years of approved FMLA leave without incident. It was also undisputed that the company was willing to grant him leave for his 2015 anticipated absences had he not had these troublesome issues with his latest FMLA form. In sum, he alone was “the author of his own tale of woe.”
No inference of FMLA retaliation. The employee also could not establish that he was retaliated against for requesting FMLA leave since there was no evidence of a pattern of antagonism against him for any reason, let alone for taking FMLA leave. The company undisputedly supported his taking FMLA leave for years before this issue arose and there was no indication that it planned to resist his latest request. Rather, the trouble only began only after the doctoring of his FMLA form came to light via the third-party administrator.
The short temporal proximity between his employer’s becoming aware of the issues with his FMLA leave request and his termination (roughly two weeks) also was not enough to suggest a causal connection. Because his termination was the result of an investigation, and it took the company two weeks to conduct a hearing and reach a decision, that short time period was not in and of itself “unusually suggestive” of retaliatory motive.
No ulterior motive. Finally, the record did not suggest that the employer’s proffered reason for terminating him was used as pretext to retaliate against him for requesting FMLA leave. The court squarely rejected his assertion that that the employer never proved that he falsified the paperwork and that it should have interrogated the physician assistant. It was not enough for him to simply show that the decision was wrong or mistaken and the company appropriately relied upon information received from its FMLA administrator before suspending him from duty. Moreover, it didn’t terminate him until after a completed investigation and hearing, and a statutory arbitration body affirmed its decision.
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