By Pension and Benefits Editorial Staff
A helicopter pilot was fired from his job as a flight paramedic based on his apparent fraudulent misuse of baby-bonding leave to operate a side business at airshows, and for being dishonest when confronted about it, a federal district court in Kentucky ruled in dismissing his FMLA and promissory estoppel claims on summary judgment. The employee’s unsupported contention that he brought his newborn along to the airshows on the dates in question did not change the fact that he was less than forthcoming when confronted, and there was no evidence suggesting that his employer did not have an honest belief that his conduct warranted termination.
The pilot was hired by Phi Air Medical (PHI) at its Morehead, Kentucky location. In accordance with PHI’s conflict of interest policy, he disclosed that he was running a side business in which he participated in airshows by giving helicopter rides to patrons for a fee. The company determined that there was no conflict of interest, provided that he only engaged in his side business at times when he would not otherwise have been scheduled to work for PHI.
FMLA-like leave to bond with newborn. PHI was not a covered employer under the FMLA but had adopted a practice of approving employee requests for FMLA-like leave. In February 2016, the pilot was granted his request for intermittent leave to bond with his newborn, whose birth was expected in March. To accommodate his request, he was not scheduled to work any specific days. Instead, his supervisor would ask him whether he could work certain days, and he would respond yes or no.
Operated side business while on leave. After his son was born in mid-March, the employee began taking his "baby-bonding" leave. However, on May 18, the regional director learned that he had taken baby-bonding leave on April 3 and April 7 in order for his side business to participate in an airshow in Florida, and also on May 7 to participate in another airshow in Nebraska.
Fired for being fraudulent and dishonest. When management asked him whether he used his baby-bonding leave to attend air shows and operate his side business, he responded, "absolutely not." He also never requested vacation days for the dates in question and had exhausted all of his vacation time by April 1. PHI terminated him on June 1, purportedly due to his fraudulent use of the approved baby-bonding leave and for being dishonest when asked about the use of the leave.
FMLA claims tossed. The pilot’s FMLA interference claim failed as a matter of law because there was no indication that he was denied any baby-bonding leave he requested. His retaliation claim was also doomed since he failed to cast doubt on the employer’s assertion that it fired him based on its honest belief that he was using his approved FMLA-like leave for a fraudulent purpose: to operate his side business in air shows around the country and not to bond with his newborn son.
Lied when confronted. Notably, when the employee was asked point-blank if he was operating his side business during his leave, he responded "absolutely not." PHI thought he was lying, and the sequence of events clearly gave it a non-retaliatory reason for terminating him. "The FMLA is not a carte blanche. . . Dishonesty and fraud constitute lawful, non-retaliatory bases for termination." Here, the pilot was dishonest when the employer inquired as to the leave he had taken.
The court rejected the pilot’s attempt to establish pretext by emphasizing that he was not scheduled to work on the days in question. Notably, the reason that his name was not on the whiteboard was because he was presumably on leave. Indeed, various managers testified that he would have been scheduled on some or all of those days had he not been on baby-bonding leave. And while he also contended that he requested vacation days for the time he attended the airshows, there was no record of such a request and he testified that he had no vacation days left to take.
Honest belief. Finally, the employee contended that because he took his newborn to the airshows on the date in question, it could be implied that he was bonding with his newborn and not "playing fast and loose" with his baby-bonding leave. However, his assertion in this regard was not supported by any evidence, nor did it change the fact that he was not forthcoming and honest when asked about the airshows. Rather, because there was no evidence suggesting that the employer did not have an honest belief that his conduct warranted termination, he could not establish pretext simply because the reason is ultimately shown to be incorrect.
In determining whether the employer had an honest belief, the court examined whether it had established a "reasonable reliance" on the particularized facts that were before it at the time the decision was made. The record established that the employee, while on baby-bonding leave, pursued his entrepreneurial enterprise and, when confronted, was untruthful. This decision was not pretext, it was "an unassailable reason for termination." Indeed, the issue was not whether he actually lied about his whereabouts and intentions, but whether the employer reasonably believed that he did.
Promissory estoppel. The court also tossed the pilot’s promissory estoppel claim, which was based on his contention that he operated his side business in reliance on the employer’s assurances that his side company did not create a conflict of interest, and then was terminated for doing so. Significantly, the evidence demonstrated that the employer did not terminate him for operating the side business, but because it learned that he was fraudulently using the FMLA-like leave it had approved for him to bond with his newborn son to instead operate his company at various air shows around the country.
SOURCE: Samuell v. Phi Air Medical, LLC, (E.D. Ky.), No. 16-cv-00113-HRW, August 7, 2018.
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