Pension & Benefits News Bank fraud investigator fired for misuse of search tools to investigate abusive ex-boyfriend’s girlfriend, not FMLA leave
Friday, June 12, 2020

Bank fraud investigator fired for misuse of search tools to investigate abusive ex-boyfriend’s girlfriend, not FMLA leave

By PPension and Benefits Editorial Staff

A federal district court in Ohio has granted summary judgment against the FMLA retaliation and interference claims brought by a Discover employee who used the company’s online search tools to conduct searches of persons close to an ex-boyfriend who abused her, against whom she had an order of protection, and who was still harassing her. The employee had taken FMLA leave to recover after the ex-boyfriend had physically and mentally abused her, and a company investigation found that while on leave she had performed searches on the ex-boyfriend’s current girlfriend (who was implicated in the continued harassment of the employee).

Fraud investigator. The employee was hired as a customer service representative in 2010, received several promotions, and ultimately served as a bank fraud investigator from 2014 until her termination in 2017. That position gave her access to online investigative tools, used to investigate the employer’s cardmembers, and which provided her access to individuals’ addresses, social security numbers, and other personal information.

Domestic violence. The employee took four employer-approved FMLA leaves, only the fourth of which was at issue in her lawsuit. She took that fourth leave from June to November 2017, suffering with a serious medical condition caused by physical and mental harm inflicted by her former boyfriend during a domestic violence incident in May 2017. Though her doctor insisted she needed to be in a long-term counseling program, the employee returned to work in November after the employer told her that it could not hold her job open indefinitely. Even after the May incident, though the employee obtained an order of protection against her former boyfriend and he had been criminally charged with domestic violence, he continued to harass her, and was joined in doing so by his new girlfriend. The ex-boyfriend was ultimately charged with an additional felony.

Accusation against employee. In November, the employer received a call from a woman (who turned out to be a friend of the ex-boyfriend’s new girlfriend), claiming that the employee was using online investigative tools accessible through her work "to skip trace and get information on others, then files false charges against them." All of the alleged victims of this conduct were affiliated with the ex-boyfriend. It is undisputed that at the time it terminated the employee, the employer did not know the connection between the caller, the alleged victims, and the employee’s ex-boyfriend and new girlfriend.

Investigation and termination. The employer’s internal policies prohibit employees form using its resources and tools for anything other than business purposes. After the call, the employer investigated and found that the employee did use its tools to search the ex-boyfriend’s girlfriend and others, but not the women that the caller identified. In other words, the caller’s charge was not substantiated, but other violations by the employee were found. After the employee’s return to work in November, and an investigative meeting with her, the employer placed her on administrative leave pending further investigation, ultimately terminating her later that month for violating its policy against private use of company resources. She then filed her FMLA claims.

Retaliation test. The court first addressed the parties’ dispute about the proper test to apply to the employee’s FMLA retaliation claim. The employee argued that this was a "mixed-motive" case, since FMLA retaliation was one of the reasons for her termination. The employer contended that the McDonnell-Douglas burden-shifting analysis applied, because the employee presented no evidence that FMLA retaliation was a motivating factor in her termination. Under Sixth Circuit law, Hunter v. Valley View Local Sch., an employee may bring either a single-motive or mixed-motive FMLA retaliation claim, depending on whether the employee contends only the impermissible reason motivated the termination, or whether permissible reasons also were involved.

When an employee’s case rests on circumstantial evidence, single-motive cases use the McDonnell-Douglas analysis, but in mixed-motive cases the standard is less clear, the court noted, with some authority supporting use of the Price-Waterhouse analysis. That requires an employee to present evidence to establish that her exercise of FMLA rights was a motivating factor in the adverse employment action, after which the burden shifts to the employer to prove by a preponderance of the evidence that it would have made the same decision even without the impermissible motive. The court noted confusion in the Sixth Circuit about whether in mixed-motive cases, the Price-Waterhouse analysis has replaced McDonnell-Douglas entirely, or just a portion of the analysis.

In White v., Baxter Healthcare Corp., the Sixth Circuit held that McDonnell-Douglas did not apply in Title VII mixed-motive cases. Then, in Hunter, the court declined to address whether White’s holding extends to FMLA retaliation claims, leaving that question open. District courts in the Sixth Circuit have used different approaches. After reviewing several decisions, the court determined that the majority of district courts have applied a "hybrid of both tests," and that it would apply McDonnell-Douglas, but evaluate the mixed-motive theory using Price-Waterhouse burden-shifting to evaluate the causation element of the McDonnell-Douglas "test."

No causation. Causation was the only McDonnell-Douglas prima facie case element that the parties disputed. The employee relied solely on the temporal proximity of her termination and her taking of the fourth leave, given that she was placed on administrative leave within 30 minutes of her return. The employer argued that the relevant time for basing temporal proximity is when the employer first learned that the employee was taking leave, not when the employee returns. The Sixth Circuit has, again, sent mixed signals. In Bush v. Compass Grp. USA, Inc., that court held that the time frame starts when the employer learns of the leave; however, Judge v. Landscape Forms, Inc., a 2014 unpublished Sixth Circuit decision, held that the time is measured from when leave expires. The court decided to follow the Bush decision and calculate time based on when the employee informed the employer of her leave, in June. Given the 21-week gap between that date and her placement on administrative leave, the court found the interval too great to infer causation. Thus, the employee could not establish her prima facie case.

No pretext. But even if the shorter time interval were to be used, such that she could make out a prima facie case, under Sixth Circuit law it would be insufficient alone for finding pretext once the employer proffered a legitimate nondiscriminatory reason for the termination. This is true either under a McDonnell-Douglas or Price-Waterhouse analysis, the court noted. And the employer’s investigation, based on a tip it had no reason to question and at a time it did not know of the continuing harassment of the employee, and ultimate finding that the employee violated company policy, provided that legitimate reason, the court held.

The employee proffered three additional arguments why the proffered reason was pretextual, but the court rejected each one. The proffered reason for her termination was not baseless, as the employee contended, simply because the investigation did not find that she had used the employer’s search tools against the persons identified by the caller. The investigation did find that she misused the tools and if the company has an "honest belief" in its reasons for termination, that sufficed.

Next, she argued that a similarly situated worker, who also improperly used the employer’s search tools for private purposes, was not terminated, thus evidencing that her termination was pretextual. The court held, however, that the identified worker was not similarly situated because the decisionmakers for him were different. Finally, the court rejected her "shifting reasons" for termination argument, finding as a factual matter, that the employer’s reasons did not change.

Interference claim. The only issue on the employee’s FMLA interference claim was whether the employer’s placing her on administrative leave when she returned from FMLA leave equates with denying her FMLA benefits, since the employer had approved all of her requests to take leave and she was reinstated to her former position on return. Because the court already concluded that the reasons for placing her on leave and ultimately terminating the employee were legitimate, it dismissed the interference claim as well.

SOURCE: Reed v. Discover Products, Inc., (S.D. Ohio), No. 2:18-cv-461, May 26, 2020.

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