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“Significant Evidence of Untruthfulness” During FMLA Leave Gives Employer “Honest Belief” to Terminate Plaintiff

Add another FMLA victory for an employer who terminated a plaintiff based on its “honest belief” that the plaintiff was misusing FMLA leave.  The U.S. Court of Appeals for the 10th Circuit affirmed summary judgment for the employer on the plaintiff’s FMLA interference claim. Dalpiaz v. Carbon County Utah (10th Cir. July 25, 2014).

Following a motor vehicle accident, the plaintiff, a benefits administrator, went on leave. Despite her employer’s repeated requests that she submit the FMLA health care certification, the plaintiff finally produced it, some two months after the employer’s first request.  Following her block of leave, she returned to modified work, working two hours daily, twice per week.

While the plaintiff was on leave and while on modified duty, her co-workers and some  community members reported that she was engaging in activities that seemed inconsistent with her reported injuries and limitations: “playing football with her children, working in her yard, and assisting her children with costume changes and other tasks at lengthy dance rehearsals and recitals.” Numerous employees submitted written statements concerning their observations of plaintiff’s activities.

Based on these reports, the employer directed the plaintiff to undergo an independent medical exam (IME) to confirm that she had been entitled to FMLA. After repeated requests, plaintiff reported that she was unable to schedule the IME because it required a doctor’s referral. The employer terminated her employment.

Rejecting the plaintiff’s FMLA interference claim, the Tenth Circuit held that an “indirect link” between the reason for termination and FMLA is not enough to sustain such a claim. Although the subject matter of the paperwork plaintiff failed to timely return and the IME she failed to take concerned FMLA, it was the failures on which the employer based its action, not the content of the notices and request, the court noted. Responding to the plaintiff’s arguments that some of the witness reports were untrue, the court said:

What is important is not the absolute truth regarding Plaintiff’s state of health, but rather whether the [employer] terminated her because it sincerely, even if mistakenly, believed she had abused her sick leave and demonstrated significant evidence of untruthfulness. And on this record, there is no evidence to suggest the county fabricated these or any of the other reasons given for Plaintiff’s termination in order to justify an attempt to interfere with Plaintiff’s FMLA leave.

We have posted about numerous decisions in which the employer prevailed based on its “honest belief” that the plaintiff was misusing FMLA leave.

Among the lessons for employers from these cases is that the “honest belief” defense is powerful and that employers should investigate thoroughly to develop evidence to support that defense.

Jackson Lewis P.C. © 2020


About this Author

Michael Soltis, Jackson Lewis Law Firm, Disability and Health Management Attorney
Office Managing Principal and Office Litigation Manager Stamford

Michael J. Soltis is Office Managing Principal and Litigation Manager of the Stamford, Connecticut, office of Jackson Lewis P.C. He has represented employers in a wide range of employment and labor matters for more than 30 years.

Mr. Soltis has advised on and litigated matters involving just about every type of employment claim, including discrimination claims, family and medical leave claims, public policy and whistleblower claims, contract claims, and common law employment claims. He has litigated cases in state court and...

Alison Jacobs Wice, Workplace Law, Counsel, Training, Litigation, Jackson Lewis Law Firm

Alison Jacobs Wice is Principal in the Hartford, Connecticut, office of Jackson Lewis P.C. She represents management exclusively in workplace law and related advice, counsel, training and litigation.

Since joining Jackson Lewis in September 2003, and throughout her career, Ms. Wice has represented employers in state and federal trial, appellate and administrative proceedings throughout the United States involving the full spectrum of substantive issues covered by the firm's employment law practice. She provides advice and counsel to corporate clients on a variety of employment and employee relations claims, including discrimination, sexual, age, disability and racial harassment, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, the Family and Medical Leave Act, collective bargaining, reductions in force, and leave management issues.