August Legal Roundup: How Did Employer Discover Medical-Leave Fraud

Here’s the latest on some employment-related cases that have gone before the courts:

Family and Medical Leave Act | Disability Discrimination | Age Discrimination | Sex Discrimination | Religious Discrimination | National Labor Review Board

Family and Medical Leave Act

Talking to the press was not wise, and led to funeral-fraud discharge.

A court ruled that an employer did not violate Family and Medical Leave Act rights by investigating an employee’s suspicious use of leave. In 2008, 2009 and 2010, the employee used all of her FMLA leave in the first half of each year on an intermittent basis for her anxiety disorder. She then maintained perfect attendance the rest of the year. She took a lot of this leave on Fridays.

In 2010, the employee published a novel and was interviewed by the local newspaper. In the article, she discussed the hard work involved in writing and gave this advice to other aspiring authors: “Are you willing to give up your Fridays and Saturdays and take off a lot of work to make your dreams come true” This caused the employer to start an investigation of FMLA abuse, since most of the time she had been off work was for FMLA. The investigation also revealed falsified funeral leave. The employee was fired for funeral fraud, not for abuse of FMLA. Funeral leave is not covered by any protective law.

However, the employee sued, claiming the whole investigation violated FMLA rights and anything found was the result of an illegal inquiry.

The court disagreed, finding that the newspaper comments would validly motivate any employer to be suspicious and take a closer look. Therefore, any facts found in that investigation could validly be used.

Hall v. The Ohio Bell Telephone Company (6th Cir., 2013)

Disability Discrimination

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Attendance is essential for accountant.

An accountant had multiple and sporadic absences. She was allowed to make up missed time, but she had so many absences that she was often unable to make up all the lost time. The accountant was missing deadlines and not providing information in time for others who depended on her work. She requested and was denied the accommodation of a flexible work schedule and was terminated for attendance after FMLA and short-term disability leave ran out.

In the subsequent ADA case, the court ruled that the accountant was not a “qualified person with a disability.” Timely performance was essential to the job. She had already been provided a flexible schedule and had not been meeting the timely performance requirements. Therefore, more of that same accommodation was not reasonable.

Murphy v. Samson Resources Company (10th Cir., 2013)

“How is your mother” does not trigger “associated with” case.

The American With Disabilities Act prohibits discrimination against those who are “associated with a disabled person.” An employee’s mother had cancer, a known fact in the workplace. She requested time off to help with her mother’s care and treatment. The employee’s supervisor periodically asked about the mother’s condition, how she was doing, etc. At some point, the employee’s performance was critiqued, and she was eventually discharged for performance issues.

She then sued, claiming the supervisor was really irritated by the time she devoted to her mother’s condition, and his repeated inquiries about the mother’s health were evidence of this “associational” discrimination.

The court found this too tenuous. There was no evidence that the employee’s time off with her mother had an effect on performance or that the supervisor had any resentment over the time off. The only foundation was the employee’s conjecture or opinion that the supervisor’s questions were evidence of a connection between the mother’s condition and the discharge. The court refused to impose a standard by which supervisors can be liable for simply expressing human care or concern for an employee’s personal or family situations.

Dessources v. American Conference Institute (S.D. NY, 2013)

Age Discrimination

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Pig processor gave unequal discipline.

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A 62-year-old had worked more than 40 years at a pork-processing plant with no record of any performance issues. He was in charge of equipment in the rendering department. When the prehogger machine broke down, there was a meeting with managers in which the employee raised his voice. (There was no allegation of profanity or abusive language.) He was then fired for “insubordination.”

This was the only negative incident on his 40-year record. He was replaced by a 35-year-old who had a long record of disciplinary action without discharge. That person was on the job only months and was replaced by a 33-year-old with an even worse record of violating the company’s rules, including racial harassment.

In the age-discrimination case, the court found the company’s discharge of the older worker to be discriminatory. The younger workers were treated far more leniently, committing worse infractions yet keeping their jobs. There was also evidence that heated arguments, with swearing, were “commonplace” in the plant, and no one else had ever been fired for “yelling or swearing.”

Ridout v. JBS USA, LLC (8th Cir., 2013)

Sex Discrimination

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HR director’s complaints about her brother’s affair were not protected activity.

A family-owned engineering firm was run by the founder’s children. The VP of HR discovered her brother, another VP, was having an “illicit affair” with a lower-level female employee. This employee was allowed to get away with numerous company policy violations and other employees were complaining about favoritism. The VP of HR reported the concerns to the brother at issue and to her other brother, the CEO. She complained that the favoritism was creating a hostile, harassing environment for employees and undermining her HR ability to enforce company policies. The VP brother continued the affair. The CEO brother took no action. The VP of HR then quit, claiming constructive discharge. She alleged her brother’s lack of action was retaliation for her complaint and created an untenable situation in which her ability to enforce rules for other employees was destroyed.

She sued under Title VII for sex discrimination and retaliation. The court dismissed the case, ruling that the complaint did not state a cause of action for sex discrimination. Gender was not at issue. The brother’s favoritism toward his paramour is not illegal. There was no “unwelcome attention” in violation of the harassment laws. The favoritism in rule violations affected other employees regardless of their gender.

Further, the complaints by HR were not ignored due to the gender of the VP of HR; they were simply ignored. Since the underlying issue failed to have a Title VII EEO basis, there could also be no retaliation complaint. The retaliation must be for complaining about something which actually fits within the EEO laws.

Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs., P.C. (2nd Cir., 2013)

Religious Discrimination

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Shareholder board member is not an employee for purposes of religious-discrimination case.

A family-owned construction-supply company was sued by a shareholder/Board member who alleged Title VII religious discrimination after he was terminated from the board of directors. All shareholders and the board were family members. The plaintiff had a “spiritual awakening” and his new religious values and expressions created friction and “antagonism” within the family. He delivered a “faith-based” and moralistic eulogy at his father’s funeral, which was offensive to a number of other family members. He was then voted off of the board of directors. His stock was not affected.

In the suit, the court ruled that he was not an employee, thus he had no standing under EEO laws. Stockholders and board members do not have employment status, so the employment laws do not cover them. The case was dismissed.

Mariotti v. Mariotti Building Products, Inc. (3rd Cir., 2013)

National Labor Review Board

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Failure to take responsibility warrants suspension (“I didn’t put it there!”)

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Two Latino employees complained that another worker had a sticker on his toolbox which was profane and derogatory toward people of Mexican origin. The employee claimed that he was not biased; he had a mixed-race family and Latino in-laws. He claimed he was “set up” by others who put the stickers on his toolbox. He refused to take any responsibility and refused to sign a letter stating that he understood he was responsible for the offensive sticker on the toolbox. He received a disciplinary suspension for failure to acknowledge responsibility.

The arbitrator upheld the discipline. Both the employer and arbitrator were willing to believe others had set up the situation and placed the sticker. However, there were a number of witnesses who then observed that the sticker remained on the toolbox for over five months. The employee was clearly responsible for noticing and removing it.

In re Heinz of America and United Food & Commercial Workers #431 (2013)

Orange attack warrants termination.

An arbitrator upheld the discharge of an employee who threw an orange, hard, at another worker. This was after another incident of the employee’s verbal abuse toward a different coworker.

The arbitrator ruled that just the orange throwing alone was sufficient to justify firing the employee. No situation or provocation warrants a physical reaction.

In re Clean Harbors Deer Park LP and Teamsters Local 988 (2013)

Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached

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