Holy Smokes! Employee's Minister Uncovers Her FMLA Abuse, Leads To Her Termination

by Franczek Radelet P.C.

Linette Williams-Grant had a week worthy of Judith Viorst's classic children's story Alexander and the Terrible, Horrible, No Good, Very Bad Day, which (as an aside) is one of my all time favorites to read to my young children, particularly after a bad day.

How bad was Linette's week?  It started with her employer's surveilance of her activities and ended with her own minister confirming that she had been taking FMLA leave once each week to attend a class at church that had nothing to do with her apparent medical condition.

It's not that Linette didn't bring this on herself, but her tale still is a sad one.  Yet, it proves to be good fodder for employers considering whether to conduct an investigation into suspected FMLA abuse.

The Facts

Here's the quick story: Linette worked for Wisconsin Bell as a telecommunications specialist, which largely is a sedentary position.  She also suffered from a host of medical issues: back pain, hip pain, osteoarthritis, radiculopathy, anxiety, panic disorder and depression.  You name it, and it sounds like Linette had it.  These conditions apparently were particularly difficult during prolonged periods of standing or sitting.  According to her doctor, Linette was unable to work when these conditions flared up, so he placed her on a generous intermittent FMLA leave cycle. In short, when she had these conditions, she couldn't work.

For years, Linette's FMLA leave didn't garner too much attention until her supervisor noticed this: Linette would stop calling in sick whenever she had exhausted her annual FMLA allotment, and she would resume calling in sick and requesting FMLA leave after her annual FMLA allotment was replenished. Interestingly, her supervisor also learned that Linette would often check in to determine when her annual FMLA allotment would replenish.  The employer chose not to take action now, but rather, it studied Linette's attendance patterns for about six months.  In those six months, Wisconsin Bell found that Linette would often use FMLA leave in conjunction with days off or on a weekend (when she was scheduled to work).  

At that point, Ma Bell felt she had enough to ratchet up the review.  As a result, it conducted surveilance on Linette's activities on two separate days about one month apart.  On the first occasion, she traveled to her church for one hour to "receive prayer," as Linette would later explain.  (A quick search of a local blog also uncovered that Linette had been attending weekly classes there at the same time she should have been at work.)  On the second occasion, Linette traveled two hours from her home to a vacation home where she spent the day.

The Investigation

After surveiling her, Wisonsin Bell confronted Linette with the video surveilance.  When the video showed her walking into the church building, Linette denied any affiliation with the church or that she attended classes there. However, after being confronted with the blog entry, she then acknowledged that she went there on one occasion to "receive prayer." As to the video of her trip to the vacation home, Linette claimed she "had no memory" of the trip, which was just a few weeks earlier. [Huh?]

After the investigatory meeting with Linette, her employer was convinced it needed to close the loop on Linette's church meeting, so it went right to the source: her minister.  Linette's pastor sung like a church canary, as he eagerly confirmed that Linette had been attending classes there every week for the past three months -- all at a time when she should have been at work. It turns out that Linette called off sick or used FMLA leave on these occasions. [Me thinks the pastor did not realize he was unwittingly ratting out one in his own flock, but that's beside the point.]

Insights for Employers

The dismissal of Linette's FMLA lawsuit was a foregone conclusion.  Indeed, the court quickly disposed of her FMLA interference and retaliation claims, finding that Ma Bell clearly had an honest suspicion or belief that she had abused FMLA leave on several occasions, thereby supporting her termination.  (You can access the Williams-Grant v. Wis. Bell case here.)  We've discussed this concept before, and my friend Jon Hyman covered it in another recent case as well

Let's keep in mind, however, that the dismissal was set up by the employer's great investigatory work which, in turn, is a lesson for the rest of us:

  1. Take the time to investigate.  When Ma Bell noticed the pattern of Linette's suspicious leave activity, it didn't react rashly.  Rather, it took the next several months to study Linette's leave requests and patterns.  This patience paid off -- it further supported the employer's belief that Linette was abusing leave, and it served as the foundation for surveilance, which ultimately carried the day for the employer. 
  2. Don't be afraid to challenge all that is sacred.  I can only imagine those Catholic nuns who taught me as a young kid are rolling over in their graves, but when an employee seeks FMLA leave to go to church, this still feels and smells like FMLA abuse.  Of course, employers should be mindful that a meeting at church could conceivably be FMLA-related (e.g., for treatment, perhaps?), but in this instance, it didn't take much to tell it was a cover up.  Bottom line: even if the reason given by the employee involves going to church (or a similar faith-filled commitment), it doesn't automatically mean the issue is off limits to some level of skepticism.
  3. But be mindful of calling the Pastor.  Did anyone think that the call to the Pastor might have been a bit too much, or like me, that it was a potential O.J. Simpson moment [think: "If the glove don't fit, you must acquit."]?  There clearly is a risk in calling someone like the employee's Pastor in this situation. They might be unwilling to provide any information or be reluctant to talk.  In an effort to protect their own, they may actually give you exactly what you don't want to hear.  There isn't necessarily a right or wrong answer here, but be careful of the paths you head down in an investigation. Based on the video surveilance and Linette's apparent blog activity, the employer arguably had enough evidence to support an "honest belief" defense.  Of course, the Pastor's admission sealed the deal, but it also could have muddied the waters.
  4. In the investigative stage, seek admissions one by one to bolster your case.  I've talked about this before, but I liked the way the employer first sought out the employee's story, then showed her the video after she was not cooperative, then showed her the damning blog post after she continued to cover up her story.  This methodical approach was key to tying the employee up in a web of lies that a court easily understood and bought into later on.  Good work.  

In all, a solid decision for employers with some great guidance for the rest of us in the employer community.  

As for Linette's bad day, just as Alexander proclaimed on his terrible, horrible, no good, very bad day: they say some days are like that . . . even in Australia!

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

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