Labor & Employment Law Daily No FMLA claim for machine operator fired after taking leave before and after Dallas Cowboys’ game
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Tuesday, March 10, 2020

No FMLA claim for machine operator fired after taking leave before and after Dallas Cowboys’ game

By Kathleen Kapusta, J.D.

Although the employee claimed to be sick, he flew to Texas, tailgated for two hours before attending the game, made several posts on Facebook, and passed out souvenir cups to his coworkers upon his return.

It can’t be reasonably disputed, said a federal district court in New Jersey, that an International Paper Company employee was lying to his employer when he requested FMLA leave on a weekend because he was “sick,” and could not work “when all the while he was travelling to Texas and attending the Cowboys-Eagles football game with significant physical activity in the process.” Although the employee pointed to the close temporal proximity between his leave and his termination—three days—the court noted his 17-year history of requesting and being approved for FMLA leave without any repercussions. Nor was there any evidence of inconsistency, said the court, as the company repeatedly stated its belief he had fraudulently used FMLA leave to attend the game (Pizarro v. International Paper Co., March 3, 2020, Bartle, H., III).

The long-time machine operator for International Paper, who was diagnosed with type 2 diabetes in 2002, also suffered from diabetic neuropathy, which caused pain and swelling in his feet. Because he could not stand for extended periods of time, he requested and was approved for intermittent FMLA to manage his pain. The company approved his leave requests for the next 17 years without any documented issues.

Football game. Although the employee was scheduled to work from 3:00 a.m. to 3:00 p.m. on Saturday, December 8, 2018, he also planned to attend the Dallas Cowboys football game in Texas the following day and had booked a flight that was scheduled to leave from Philadelphia at 8:25 p.m. Saturday night. Two hours before his 3:00 a.m. shift was scheduled to start, he called in to report he was taking FMLA leave because he was sick.

Facebook posts. The employee flew to Texas and the next day, arrived two hours early to the game to tailgate with friends. During the game, he stayed at the stadium for over three hours, much of the time on his feet. Over the weekend, the employee and his wife made several posts on Facebook. His return flight on Monday was scheduled to leave at 6:00 a.m. CT and he was scheduled to work at 3:00 p.m. ET. Early Monday morning, he texted a coworker that his flight had been delayed. Later that morning, he again called in to report that he was taking FMLA leave because he was sick.

Souvenirs. A supervisor who had seen the employee’s Facebook posts, and knew that he had called off work over the weekend, forwarded the posts to management and HR. A site manager, who believed the employee had told another shift supervisor earlier in the week that he had planned to call off from work on Saturday, began an investigation. When the employee returned to work on Tuesday, he passed out souvenir cups from the game to his coworkers.

Who told you? The next day, the employee attended a meeting with management and HR where he was asked about his trip to Texas. Rather than confirming the trip, he asked “who told you this information?” He also produced a doctor’s note excusing him from work on December 8th and 10th, which was dated December 8, and which he admitted he requested on December 11th during a pre-scheduled, routine appointment. He was suspended pending further investigation. He then deleted his Facebook posts about the game. He was fired on December 13 for falsifying company reports.

FMLA retaliation. At issue in his FMLA retaliation claim was whether his termination was causally related to his leave request. Although his leave requests on December 8th and 10th were certainly close in time to his termination on December 13, in light of his 17-year history of requesting and being granted leave without any issues, this was insufficient to establish a causal connection. International Paper, observed the court, only decided to terminate him when it because aware of his violation of its policies regarding falsifying company reports.

Animus. But while the employee argued that the temporal proximity between his call-offs and his termination supported an inference of animus, the court, rejecting this contention, noted that “an employer’s decision to terminate an employee for FMLA abuse will likely occur in close temporal proximity to the time when the abuse is discovered.” Therefore, without more, it was not enough to show animus. And while the employee also argued that animus could be inferred because management did not ask about his physical condition on the days he took leave, its lack of knowledge regarding his specific illness was irrelevant to its retaliation analysis, said the court.

The employee also pointed to a comment by a regional manager that “these guys are killing our other employees.” He claimed that the reference to “these guys” was a negative reference to workers who take FMLA leave and thus it showed retaliatory intent. Disagreeing, the court found it was a one-time remark by a manager who was not involved in the termination process and thus it did not establish retaliation.

No inconsistency. Nor was there any evidence of inconsistencies or discrepancies in the company’s reasoning for terminating the employee, observed the court, noting that it consistently stated its belief the employee fraudulently used FMLA leave to prepare to attend a football game in Texas and because his return flight was delayed.

Mixed motives. Finally, the court found the employee failed to show his legitimate use of FMLA leave was a factor in the termination decision. Not only was there no evidence of retaliatory animus or antagonism, until his termination, he never complained about the way he was treated and he was never disciplined for using or requesting FMLA leave.

Honest belief. Even assuming he satisfied his prima facie case, International Paper pointed to its honest belief he falsified company information to fraudulently take FMLA leave. And here, said the court, the undisputed facts supported this assertion as the company accommodated his leave request for 17 years without any retaliation; there was no evidence it retaliated against any of its employees for requesting FMLA leave; the employee requested FMLA leave the day before and after he attended a football game in Texas; he called off from work, seeking FMLA leave less than an hour after he texted a coworker that his flight was delayed; when questioned, he refused to confirm that he attended the game; and he deleted Facebook posts showing he was at the football game immediately after he was suspended. Thus, International Paper was entitled to summary judgment on the employee’s FMLA claim.

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