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The Employer Handbook Blog
When Consistent Enforcement of Your FMLA Policy Is Your Best Discrimination Defense
A bus operator was fired for FMLA falsification and claimed his employer terminated him because he was transgender. The employer’s defense was simple: it fired four other employees for the same conduct around the same time. A federal appeals court just said that’s enough.
TL;DR: A transgender bus operator was terminated for FMLA leave falsification after reporting 24 absences to his work location without contacting the employer’s third-party FMLA administrator. He sued for transgender discrimination and retaliation under Title VII and for FMLA violations. The Seventh Circuit affirmed summary judgment for the employer on all claims. The employer wins. This is a non-precedential opinion.
Twenty-Four Absences, Four Comparators, and One Discrimination Claim That Didn’t Survive
The employer in this case used a third-party administrator to manage FMLA leave. The process required employees to contact the administrator first, then notify their work location. An employee who skipped the administrator and reported only to his work location got an untracked absence, effectively getting time off without it being tracked or approved as FMLA leave. Both management and the union had communicated the correct reporting sequence to employees. The employee had even complied with it during a prior period of FMLA leave.
Starting in June 2020, the employee applied for intermittent FMLA leave for back pain. While his application was pending, he began calling in FMLA absences to his work location without contacting the administrator. By October, a business manager noticed the discrepancy between the employer’s records and the administrator’s and confirmed the employee had failed to contact the administrator on 24 occasions. In a meeting the next day, the employee couldn’t explain why. He was terminated in January 2021 for falsification. Four other bus operators were terminated for the same conduct around the same time. The Seventh Circuit affirmed the employer’s summary judgment win on all claims.
Why the Discrimination Claim Failed
To survive summary judgment on a Title VII discrimination claim, the employee needed to show that a similarly situated non-transgender employee was treated more favorably. He couldn’t. Around the time of his termination, the employer fired four other bus operators for FMLA falsification. None were transgender. The union sought last chance agreements for the terminated employees. The employer refused in each case. Consistent treatment is a powerful defense, and the employer’s records supported it.
The employee pointed to one comparator who had received a last chance agreement, but never established whether that employee was transgender, whether he had engaged in FMLA falsification, or whether the situations were comparable in any relevant respect. A comparator that does none of those things doesn’t move the needle.
Three Things This Case Illustrates About Falsification, Documentation, and Discrimination Defense
Consistent enforcement of a conduct policy doesn’t just protect against FMLA abuse. It’s also what defeats a discrimination claim when one follows a termination.
Consistent enforcement across employees is the employer’s best discrimination defense
The employer fired five employees for the same conduct in the same period. That consistency, documented in termination letters and administrator records, was the foundation of its discrimination defense. An employer that enforces its policies selectively, or that offers different employees different outcomes without documented justification, hands the plaintiff a comparator argument. Uniform enforcement, applied and recorded in real time, is what makes that argument unavailable.
The comparator burden requires more than a name
The employee identified another bus operator who received a last chance agreement. But he never established whether that employee committed the same conduct, fell outside his protected class, or was otherwise comparable. A comparator that doesn’t answer those questions fails. Employers defending discrimination claims should be prepared to document not just what they did but what they did in comparable situations, and why any differences in outcome were justified.
Falsification detection depends on a process, not a lucky catch
The employer caught the discrepancy by cross-referencing administrator records against work location records. That wasn’t accidental, as the employer had asked managers to do exactly that. Employers using third-party administrators should build record reconciliation into their regular compliance process. Without a consistent reconciliation process, a months-long gap between the conduct and its discovery looks less like oversight and more like selective enforcement — which is precisely the pretext argument.
When an employer fires five employees for the same conduct around the same time, the discrimination claim has a problem from the start. The documentation that makes that defense possible starts long before the lawsuit.