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Your Employee Matters


By February 1, 2012No Comments

An employee who had a suspicious pattern of using intermittent FMLA leave on Fridays and holidays could not state an FMLA claim after she was terminated for calling for FMLA leave while on a pre-planned trip to Las Vegas. In Crewl v. Port Authority of Allegheny County, the plaintiff had been certified for (and granted continuously) FMLA leave over a five-year period for migraine headaches and anxiety. A pattern of “Friday FMLA events” emerged (the plaintiff had missed 26 of 52 Fridays) so the employer invoked its right under the FMLA to have the plaintiff submit to a second-opinion medical examination. The plaintiff’s doctors were asked whether the leave pattern was consistent with her medical conditions. The doctor providing the second opinion concluded that the nature of the plaintiff’s conditions — unpredictable migraines and anxiety attacks — was inconsistent with a pattern of onsets on Friday. The doctor also concluded that the plaintiff could control her condition fully with medication. By contrast, the plaintiff’s doctors certified that the pattern was consistent with her condition.

Meanwhile, the plaintiff scheduled a trip to Las Vegas, for which she was granted leave until July 2, but denied it for July 3 and 4. She tried unsuccessfully to get someone to cover her other shifts. Thereafter, on July 2 the plaintiff called out sick for the next two days (July 3 and 4). This leave was credited as qualifying under FMLA, and the plaintiff was even granted holiday pay, despite her failure to work the day before the holiday, as required by the collective bargaining agreement. However, the employer later concluded that the plaintiff had used FMLA fraudulently to cover preplanned vacation days and terminated her. She sued, claiming interference under FMLA and retaliation.

The court granted the employer’s motion for summary judgment. The court noted that the nature of the employee’s condition — unpredictable migraine onset — made it clear that when she called in sick on July 2 for a two-day period, the act was fraudulent. By her own admission, she could never tell when a migraine would disable her. In addition, the fact that she called seeking FMLA while on vacation in Las Vegas and remained there through the July 4 holiday established fraud. Noting that FMLA status does not prevent termination of an employee for reasons unconnected with legitimate FMLA leave, the court held that the employer terminated the employee legitimately for fraudulent use of leave.

Article courtesy of Worklaw® Network firm Shawe Rosenthal.