Fired you will be getting drunk, DUI, and arrested on an FMLA day


That’s the opening line from the Director’s Cut of the advance screening that JJ Abrams sent me. Trueish story.

Actually, the lede comes from a recent Pennsylvania federal court decision. Here are the facts:

Mondelez Global LLC (“Mondelez” or “Defendant”) fired Fredrick Capps (“Capps” or “Plaintiff”) believing that he misused leave taken pursuant to the Family and Medical Leave Act (“FMLA”). In early 2014, Mondelez learned that on February 14, 2013, a day on which Capps took FMLA leave, he went to a local bar, became highly intoxicated and was arrested and charged for driving under the influence on his way home. Capps also took FMLA leave the following day after spending several hours in jail the night before. Capps filed this lawsuit after he was terminated, claiming that Mondelez interfered with his FMLA benefits, retaliated against him for taking FMLA leave, and violated his rights under the Americans with Disabilities Act (“ADA”) and the Pennsylvania Human Relations Act (“PHRA”).

No FMLA interference because the employee enjoyed FMLA leave.

Perhaps, a bit too much.

But, either way, an essential element of an FMLA interference claim is that the employee show that he was entitled to benefits under the FMLA and that his employer prevented him from obtaining those benefits. Here, the plaintiff took FMLA leave on Valentine’s Day. A year later, he was fired when the company found out about the boozy events. Still, the employee did get his FMLA day. Thus, no interference.

No FMLA retaliation because the employee was not fired for taking FMLA leave.

To have a shot at proving FMLA retaliation, a plaintiff must show that (1) he invoked his right to FMLA leave; (2) he suffered an adverse employment decision; and (3) the adverse employment decision was causally related to the leave. That causal connection usually crops up in one of two ways: either a termination immediately follows an FMLA leave or there is some evidence of ongoing animus against the employee.

Here, a year had lapsed between the FMLA leave and the termination. So, the timing stinks…for the plaintiff. And ongoing animus? Fuhgeddaboudit. Here, the court noted that “nobody at Mondelez was aware of the DUI, and he continued to take intermittent FMLA leave without issue for the remainder of 2013. It was not until the newspaper clipping appeared in Oxenford’s office mailbox in early 2014 that an issue arose surrounding Capps’s FMLA usage.”

Really, an honest belief is all it takes.

Let’s assume that, instead of a year passing before the employer learned about the bender, it only took a month, or even a week. If the employer fires the employee, could that be FMLA retaliation? Would your answer depend on whether drinking at a bar is not inconsistent with the reason taking FMLA leave?

Actually it doesn’t matter. Rather, the employer just needs to honestly believe that the employee violated work rules:

The question is not whether the employer’s decision was wrong or mistaken but whether the employer acted with discriminatory animus. Any material issue that the evidence of his denial creates goes solely to whether the decision was wrong, not discriminatory. Here, even if Capps was able to show how a more thorough investigation would have demonstrated that Mondelez’s decision was wrong, no evidence exists that the decision was discriminatory. It is not the role of this Court to sit as a super-personnel department that reexamines an entity’s business decisions. No matter how mistaken the firm’s managers, the laws barring discrimination do not interfere.

Here, Mondelez reasonably concluded that Capps violated its Company Dishonest Act Policy by abusing (as opposed to using) FMLA leave. An employee is not immune from discipline because the alleged misconduct occurred while on protected leave.

Image Credit: angelo Yap on Flickr

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