A version of this article was originally published in the October 2017 issue of The HR Specialist. It is reprinted here with permission.
The Third Circuit Court of Appeals (which covers Pennsylvania) recently handed a victory to employers that struggle with employees who misuse Family and Medical Leave Act (FMLA) leave — particularly intermittent FMLA leave. In Capps v. Mondelez Global, LLC, 847 F.3d 144 (3rd Cir. 2017), the court held that an employer's honest belief that its employee misused FMLA leave was sufficient to defeat an FMLA retaliation claim, even if the employer was mistaken.
In Capps, the company’s FMLA policy stated: “[T]he submission of false information to the Company regarding the need for FMLA leave, or the fraudulent use of FMLA leave, may result in discipline, up to and including termination.” The company also had a policy titled “Dishonest Acts on the Part of Employees,” which provided that: “The Company will not tolerate dishonesty on the part of its employees . . . any employee found guilty of a dishonest act would be subject to dismissal.”
The plaintiff, Frederick Capps, underwent a bilateral hip replacement in 2003. Afterward, he experienced severe pain at times in his pelvic region, thighs and hips, sometimes lasting for days or weeks. During these flare-ups, his employer, Mondelez, provided him with intermittent FMLA leave.
On February 14, 2013, Capps took the day off because of his medical condition. That evening, he went to a pub and became severely intoxicated. On his way home, Capps was arrested for driving while intoxicated and spent the night in jail. He was scheduled to work the next afternoon, but called out again, complaining of leg pain. Approximately six months later, Capps pled guilty to the DWI charge and served 72 hours in jail immediately following the guilty plea hearing.
Mondelez’s HR manager learned about Capps’s arrest and conviction when he read about it in a local newspaper. The company investigated and learned that the date of Capps’s arrest and subsequent court dates coincided with dates when he had taken intermittent FMLA leave. Capps was terminated for violating the company’s Dishonesty Policy.
Capps brought suit, claiming, among other things, that the company discriminated against him in violation of the FMLA by terminating his employment in retaliation for taking FMLA leave. The lower court granted summary judgment to the company on the ground that the company acted on an honest belief that Capps had misused his FMLA leave.
On appeal, the Third Circuit agreed with the district court that Capps had failed to establish a prima facie case because he was unable to demonstrate that the proper use of his FMLA leave — a protected activity — was causally connected to his termination.
Significantly, the court also found that, even if Capps could have established a prima facie case of FMLA retaliation, the company met its burden of demonstrating a legitimate, nondiscriminatory reason for his discharge — the fact that Capps was terminated for misusing FMLA leave in violation of the company’s Dishonesty Policy. The court noted that the “critical inquiry in discrimination cases like this one is not whether the employee actually engaged in the conduct for which he was terminated, but whether the employer in good faith believed that the employee was guilty of the conduct justifying discharge.” The court concluded that it is enough if the employer provides evidence that the reason for the adverse employment action was an honest belief that the employee was misusing FMLA leave, regardless of whether that belief turned out to be true.
This holding is consistent with decisions in the Seventh, Eighth and Tenth Circuit Courts of Appeals, which have all applied the “honest belief” rule to cases involving FMLA leave. The Sixth Circuit, by contrast, has adopted a modified version of the “honest belief” rule, requiring employers to show that their legitimate business reason not only is honest but also is “reasonably based on particularized facts.”
The Third Circuit’s decision in Capps also is consistent with decisions of the court in other types of discrimination claims. For example, the Third Circuit stated, in the age-discrimination case Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 332 (3d Cir. 1995), that “we do not sit as a super-personnel department that reexamines an entity's business decisions . . . . [O]ur inquiry is limited to whether the employer gave an honest explanation of its behavior.” Likewise, in the Title VII case Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994), the Court held that a plaintiff cannot discredit an employer’s proffered legitimate, nondiscriminatory reason for termination by “simply show[ing] that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.”
Although the “honest belief” rule provides some solace to employers that sincerely believe their employees are misusing FMLA leave, employers are cautioned to tread carefully in invoking this defense. Before terminating an employee for FMLA abuse, make sure that you have objective evidence of misconduct. It is likely in most cases that the courts will leave it to a jury to decide whether the employer’s belief was, in fact, truly honest.
