Howard Rubin and Don Stait,
The Daily Record Newswire
Remember the name Jaszczyszyn. It stands for the proposition that an employer that has a measured response to suspicions of dishonest behavior by an employee will be better off than an employer that terminates first and asks questions later.
In Jaszczyszyn v. Advantage Health Physician Network, the U.S. Court of Appeals for the Sixth Circuit held that the company did not violate the Family and Medical Leave Act when it terminated the plaintiff while she was on medical leave, after discovering that Facebook photos showed she was attending a festival with friends.
The facts
The plaintiff had been an employee of Advantage Health Physician Network for nine months when she began complaining of back pain from a car accident she was involved in before being hired by the company.
Her job required her to sit at a desk for long periods of time, and the company accommodated her by allowing her to stand as much as necessary. When standing proved to be insufficient, she requested time off, noting on her work release form that she was “completely incapacitated” and could not perform her work duties.
Because the plaintiff did not have enough accrued paid time off to cover her expected absence, the company recommended that she take FMLA leave. She was informed of her rights and responsibilities under the FMLA, as well as the company policy requiring that she maintain regular contact with her supervisor and comply with the company’s normal absence notification requirements.
Following 10 days of leave, the plaintiff returned to work, stating that she did not require extended leave, but rather occasional leave on an “as-needed” basis when she had flare-ups, which, she claimed, could last anywhere from a few hours to a few days.
After a single day of work, she took intermittent leave, but treated it as continuous and open-ended and did not return to work. Moreover, the plaintiff failed to fulfill her obligation to keep her supervisor informed that she would be absent as her leave continued.
In spite of concerns regarding the plaintiff’s continuous absences, the company did not question her use of FMLA leave. After several weeks of continuous leave, she provided the company with a note indicating that she would be completely incapacitated for an additional three weeks.
Three days after providing the note, the plaintiff and some friends attended “Pulaski Days,” a local Polish heritage festival. One of her friends took numerous photographs of the plaintiff visiting three different halls at the festival, and posted the photos on Facebook. That same weekend, the plaintiff left messages with her supervisor that she would not be at work on Monday due to her back pain.
Several of the plaintiff’s co-workers were also her Facebook friends. When they saw the photos of her “partying,” they felt betrayed because they had been covering her work while she was allegedly out due to medical issues. One of the co-workers brought the photos to the attention of the plaintiff’s supervisor, who initiated an investigation.
The company contacted the plaintiff and requested that she report to the office to discuss issues relating to her leave. During the meeting, the parties discussed the plaintiff’s violation of the company’s communications policy, her job requirements and the medical condition that allegedly prevented her from working. They also discussed the fact that the company took fraud very seriously, which the plaintiff agreed she knew.
The company then confronted the plaintiff with the Facebook photos and asked for an explanation. The plaintiff did not deny her actions or offer any explanation. Her only response was that no one told her it was prohibited conduct. Because she did not offer a reasonable explanation for the discrepancy between her claim of complete incapacitation and the photos of her activities at the festival, her employment was terminated at the end of the meeting.
The lawsuit
Six months later, the plaintiff filed suit, claiming retaliation and interference related to her FMLA leave. The Sixth Circuit affirmed the lower court decision dismissing both of her claims. Addressing the retaliation claim, the court noted that the plaintiff offered “little or no evidence” of any connection between the protected FMLA activity and the termination, while the company proffered evidence of an adequate investigation.
As to the interference claim, the court held that, where an employee has “received all of the FMLA leave to which (she) is entitled,” any interference claim must fail.
In the end, the court found it reasonable that the company held an “honest belief” that the plaintiff had committed fraud based on the Facebook photographs, her medical claims and the company’s interview with her, and concluded that “(the company’s) termination of (the plaintiff) because of her alleged dishonesty constituted a non-retaliatory basis for her discharge.”
Lessons for employers
Complete a thorough investigation prior to any adverse employment action. The company terminated the plaintiff’s employment only after conducting an internal investigation and directly discussing concerns with her about potential fraudulent conduct — concerns that were supported by an “honest belief” of fraud after she posted photographs on Facebook that were inconsistent with her FMLA leave.
Put a decision-making process in place and don’t circumvent it. Many employers may have fired the plaintiff when she first violated her intermittent leave or failed to report. If the company had done so, the court decision might have been different.
The court upheld the use of the “honest belief” standard when reviewing an employer’s decision-making process, and the company was able to make a convincing case for honest belief by the time of termination. Given this, an employer should be prepared to show its process, how it arrived at its decision, and the information it reviewed in reaching that decision.
Document the process. The company was able to refute the plaintiff’s interference claim by showing it provided the entitled FMLA leave before acting, even when questions and concerns arose. Had it not conducted an appropriate investigation and merely terminated the FMLA entitlement as soon as suspicion arose, the end result might have been different.
Social media is a double-edged sword. Although Facebook evidence worked in the company’s favor, that may not always be the case; this is a developing area of law. Before taking action,
consult an attorney, or review the National Labor Relations Board’s guidance.
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Howard Rubin is a shareholder in Littler Mendelson’s Portland office. Contact him at 503-221-0309 or hrubin@littler.com. Don Stait is Special Counsel in Littler Mendelson’s Portland office. Contact him at 503-221-0309 or dstait@littler.com.
