Employee Who Was Going to College While on FMLA Leave Was Properly Terminated
Plaintiff worked as a supervisor for Comcast’s Retention Department. She worked Monday through Friday. In July 2010 she requested time off on Tuesdays and Thursdays to take care of her child, who suffered from asthma. The request was initially denied, so plaintiff used flex time or vacation time on Tuesdays and Thursdays until she ran out of that bank of time in September.
On September 28, 2010, plaintiff met with Comcast’s Senior Director of Human Resources to request FMLA leave to care for her daughter. She also said that she was attending classes on Tuesdays and Thursdays, but she did not specifically state that she would be using FMLA leave to attend those classes.
The FMLA request was approved for leave two times per week to care for her child’s serious health condition for the period between September 1, 2010 and August 31, 2011.
On November 8, 2010, plaintiff’s supervisor sent an internal email stating that coworkers were “getting really upset at the fact that they know of plaintiff’s pattern of calling off on Tuesday and Thursday.” The Human Resources Department decided to investigate plaintiff’s use of FMLA leave and retained an outside surveillance company to monitor plaintiff’s internet activity and conduct surveillance on her home.
Comcast held a fact finding meeting with plaintiff on January 25, 2011. Plaintiff stated that she sometimes went to the library to study or ran personal errands on FMLA leave days. She also admitted that she would stay home to rest if she had been up the night before caring for her daughter. The company terminated plaintiff’s employment. Later on during discovery it found out that plaintiff had attended classes at one of two colleges –Roosevelt University or Saint Xavier University during work hours while on FMLA leave.
Plaintiff sued and alleged that the company interfered with her use of FMLA leave. She argued that even if she did conduct personal business during FMLA leave, she also spent some part of every FMLA leave day caring for her daughter. The Court held that an employer is under no obligation to reinstate an employee who misuses disability leave. The Court further noted that “[p]laintiff’s FMLA leave allowed her to use it only for caring for her daughter, not for recovering from caring for her daughter, or for conducting personal business after caring for her daughter.”
The Court added, “[A]ccepting plaintiff’s position regarding partial days would lead to an absurd result; if she had spent one minute of the day caring for her daughter, according to her theory of the FMLA, she was entitled to take a full day off.” While plaintiff may have fully intended to use FMLA leave to care for her daughter, the facts were that she actually did many other personal things unrelated to her leave.
This case provides some helpful news for employers in dealing with the FMLA. As employers know only too well, the FMLA can be finessed by employees, and it can be very hard to make sure that the true purpose of the FMLA leave is actually realized. Few employers would go to the lengths of hiring an outside investigator, but in this case the aggressive approach by Comcast paid dividends. This case can be found at Sledge v. Comcast ABB Management, LLC, 2012 U.S. Dist. LEXIS 85832 (E.D.Ill. 2012).
About the Author
John H. Geaney, a shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates. His blog may be read at http://www.njworkerscompblog.com.
Mr. Geaney is a member of the National Workers' Compensation Defense Network.