The FMLA and the “Honest Belief” Defense
Federal courts have upheld a defense to a Family and Medical Leave Act (“FMLA”) retaliation claim called the “honest belief” defense. The “honest belief” defense means that “where an employer provides evidence that the reason for the adverse employment action taken by the employer was an honest belief that the employee was misusing FMLA leave, that is a legitimate, nondiscriminatory justification for the discharge.” Capps v. Mondelez Global, LLC, 847 F.3d 144, 152 (3d Cir. 2017). The “honest belief” defense, if proven, is a total defense to a retaliation claim, even if it later turns out that the employer was wrong and the employee did not in fact misuse the FMLA leave.
The Third Circuit recently issued a decision dealing with the “honest belief” defense. In Capps v. Mondelez Global, LLC, 847 F.3d 144 (3d Cir. 2017), the Third Circuit upheld the trial court’s summary judgment in favor of the employer, Mondelez Global, LLC, on the grounds that the company had an “honest belief” that the employee had violated company policy with regard to taking FMLA leave.
Plaintiff, Capps, was initially hired in November 1989. He was employed as a “mixer,” which required him to operate a mixing machine that made dough. The Defendant, Mondelez, had a personnel policy that entitled an employee to FMLA leave for a “serious health condition of the employee that makes the employee unable to perform one or more of the essential functions of his/her position” and allowed for the use of intermittent FMLA leave when it was a medical necessity. The policy also required that the employee provide notice of the leave “as soon as practicable.” As part of the process of obtaining FMLA leave for the employee’s own serious health condition, Mondelez required a certification from the employee’s health care provider and noted, “As with all communications with the Company, the 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.” Mondelez also had a policy entitled “Dishonest Acts on the Part of Employees,” which was considered a “Major Rule.” Violations of “Major Rules” were considered inexcusable offenses that would result in immediate suspension pending an investigation, which could lead to termination. Mondelez’s Dishonest Acts on the Part of Employees policy includes the warning that:
THE COMPANY WILL NOT TOLERATE DISHONESTY ON THE PART OF ITS EMPLOYEES, WHETHER IT BE COMMITTED AGAINST THE COMPANY, ANOTHER EMPLOYEE, ITS CUSTOMERS, OR OTHERS EITHER DURING OR AFTER WORKING HOURS” and that “ANY EMPLOYEE FOUND GUILTY OF A DISHONEST ACT WOULD BE SUBJECT TO DISMISSAL.” (emphasis in original).
Capps’ suffered from a condition in which there is a loss of blood flow, severely limiting oxygen and nutrient delivery to the bone and tissues, essentially suffocating and causing death of those cells. He experienced severe pain at times in the pelvic region, thighs and hips, which sometimes lasts for days or weeks at a time. As a result, he requested intermittent time off from work when flare-ups occurred. Capps’ intermittent leave request was approved and stated that he may need one to two days off per month for a duration of up to fourteen days per episode due to incapacity and treatment appointments. On Monday, February 11 and Tuesday, February 12, 2013, Capps took FMLA leave due to leg pain, and he returned to work for a full shift on Wednesday, February 13, 2013. Capps was scheduled to work on Thursday, February 14, 2013, but he called in stating he would be late to work because of leg pain. Later that day, he again called in and stated that he would be taking a full day of FMLA leave since the pain had not subsided. His doctor also signed Capps’ FMLA certification form dated February 14th. That evening, Capps drove to a local pub to get something to eat. According to Capps, at the pub he also drank three beers and three shots of alcohol with his friends, and he spent approximately two and a half to three hours at the pub. Afterwards, despite feeling too intoxicated to drive, Capps attempted to drive home. While driving home he was stopped by the police and was found to have a blood alcohol concentration level of 0.339%. Capps was released from jail the morning of February 15, 2013. He was scheduled to begin his shift at Mondelez at 1 p.m. on February 15, 2013, but called out on FMLA leave due to leg pain.
Capps returned to work on Monday, February 18, 2013. He did not report his arrest to anyone at Mondelez; nor was he required to under Mondelez’s policies. In the meantime, Capps was recertified and approved for additional intermittent FMLA leave from July 31, 2013 through January 30, 2014. Capps was eventually convicted of a DUI and sentenced to 72 hours in jail. In early 2014, a Human Resources Manager at Mondelez became aware of Capps’ DUI conviction and sentence by finding in his company mailbox a newspaper article reporting the conviction. Upon reviewing the criminal court docket related to Capps’ conviction, human resources representatives noticed that Capps’ arrest date and “court dates” appeared to coincide with days on which Capps had taken FMLA leave. Capps was eventually terminated for what the company believed was Capps’ violation of the Dishonest Acts on the Part of Employees policy.
Capps subsequently filed a lawsuit alleging retaliation and interference in violation of the FMLA. Capps was able to provide evidence that he had in fact properly used his intermittent FMLA leave and that there was no dishonesty on Capps’ part. At the conclusion of the discovery process, Mondelez filed for summary judgment claiming that it had demonstrated a legitimate, nondiscriminatory justification for discharging Capps, namely that they thought they had evidence that Capps’ had lied about the use of his intermittent FMLA. The district court granted Mondelez’s motion for summary judgment and the Third Circuit affirmed. The Third Circuit explained that FMLA retaliation claims require proof that the employer had an “intent” to retaliate against the employee for use of FMLA. The Court clarified that where an employer provides evidence that the reason for the adverse employment action taken by the employer was an honest belief that the employee was misusing FMLA leave (as happened here), that is a legitimate, nondiscriminatory justification for the discharge (even when that belief turns out to be wrong). Mondelez was able to show that Capps was continuously provided with intermittent FMLA and was re-certified for FMLA leave approximately every six months from 2002 through early 2014. It was not until human resources representatives received the newspaper article in 2014 alerting Mondelez to Capps’ DUI arrest and conviction, that an investigation began into Capps’ attendance record to determine if any of his FMLA leave coincided with the dates related to his arrest and conviction (and it was undisputed in the records that it appeared as if some of the dates on the court docket coincided with his intermittent FMLA use).
Therefore, an honest belief that an employee is misusing FMLA leave can be a valid defense to a FMLA retaliation claim. However, the employer must be cautioned that this defense requires evidence to back up the honest belief and the employer must be cautioned not to act in any way that will be seen as interfering with the employee’s FMLA leave in an attempt to gather evidence to support the honest belief defense. If an employer does believe that an employee is misusing FMLA leave, it is a good idea to get your company’s labor and employment attorney involved to make sure that the employer complies with all state and federal laws and does not inadvertently violate an employee’s rights under state and/or federal law.
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