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Employee’s Facebook Pictures Reflecting Conduct Inconsistent with FMLA Leave Supports Employer’s Termination Decision

Recently, the United States Court of Appeals for the Sixth Circuit held that an employer did not retaliate against an employee who had taken intermittent leave nor did it interfere with her rights under the Family and Medical Leave Act (FMLA) when it fired the employee for fraud.

In this case, the employee took intermittent FMLA leave related to pain from a back injury and during said leave several of her coworkers saw Facebook pictures of her drinking at a local festival. On the weekend of the festival, the employee contacted the employer indicating that she was in pain and would not be attending work on Monday. Employee was friends with several of her co-workers on Facebook and the pictures of her at the festival were visible to them. One of the coworkers, upset about the behavior she believed was pictured, brought the photographs to a supervisor’s attention. After an internal investigation, which included meeting with the employee, the employer terminated the employee for fraud.

During the meeting with the employee, the employer addressed employee’s communication issues while on FMLA leave, including her request for an extension of her FMLA leave. The employer also addressed the employee’s job requirements and the injuries that allegedly prevented her from fulfilling those requirements. Finally, the employer addressed the pictures of the employee at the festival, which employer believed were inconsistent with the statements employee had made in support of her request for FMLA leave. At the conclusion of the meeting, the employer concluded that the employee had failed to offer a reasonable explanation of the discrepancy between her claims and the photos and terminated the employee.

Following the termination, the employee sued, asserting retaliation and interference claims related to her FMLA leave. The district court granted summary judgment for employer. The employee appealed, arguing that the basis for her interference claim was the failure of the employer to reinstate her. However, the Court of Appeals concluded that the employer did not interfere with the employee’s request for FMLA leave because it had given her all the leave to which she was entitled. The Court of Appeals also concluded that the employee’s retaliation claim failed because she was unable to show that there was a casual connection between her protected FMLA activity and the adverse employment action. In particular, the Court of Appeals held that the employer rightfully considered workplace FMLA fraud to be a serious issue and the employer’s termination of employee because of her alleged dishonesty constituted a non-retaliatory basis for her discharge.

For more information read Sara Jaszczyszyn v. Advantage Health Physician Network, No. 11-1697 (6th Cir. Nov. 7, 2012).

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