Reasonable Belief May Shield Employer From Retaliation Claims

A reasonably informed and considered decision before firing an employee may be enough to shield an employer from Family and Medical Leave Act (FMLA) retaliation claims, the Sixth Circuit Court of Appeals recently affirmed in Seeger v. Cincinnati Bell.

In Seeger, an employee (Seeger) of over 27 years was seen having a few beers at an Oktoberfest celebration. The problem? Seeger had just recently been placed on FMLA leave in conjunction with a paid leave of absence. The employer (Cincinnati Bell) had a program in place in which workers medically unable to perform their normal duties could still be paid for working in a less strenuous “light duty” position. Seeger, however, told his doctor his pain was excruciating and was granted a non-working paid leave of absence.

Four days after describing his pain and being assigned to a “no work” status, Seeger went to Oktoberfest. More specifically, Seeger walked ten city blocks to Oktoberfest, where several witnesses saw him moving freely about the celebration. Cincinnati Bell believed these actions were in conflict with his claims of work-prohibitive excruciating pain. As such, Cincinnati Bell fired Seeger for disability fraud when he returned from his leave of absence.

Seeger filed suit against Cincinnati Bell alleging age discrimination and a violation of his rights under the FMLA. The district court granted summary judgment in favor of the employer. The Sixth Circuit Court of Appeals affirmed the lower court judgment, first finding that Cincinnati Bell “has articulated a legitimate, nondiscriminatory reason for discharging Seeger.”

Once an employer articulates a legitimate reason for terminating an employee, the employee must show the reason the employer presented for termination was actually a pretext for a discriminatory purpose. Additionally, the employee must overcome the “honest belief rule.” Under this rule the employer need only show that it made a reasonably informed and considered decision before firing the employee. The employer does not have to conduct an optimal “leave no stone unturned” investigation, it must merely have an “honest belief” of the reason for termination based on a reasonable inquiry. However, the “honest belief rule” does not give employers a free pass; an employee may proceed to trial if he or she can produce evidence of a pretext.

As the appellate court noted, “Nothing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave.” Employers should understand this but must also remember to conduct a reasonable inquiry and form an honest belief before firing or taking any “adverse action” against an employee believed to be abusing FMLA. Furthermore, these actions must be documented to be proven. Cincinnati Bell prevailed because it could show it had made a reasonable inquiry and had an honest belief, and Seeger had no evidence to the contrary. Without an ability to show “honest belief,” Seeger may have been decided differently; therefore, employers should document all evidence used to reach a decision before firing or taking any adverse action against an employee.

For more information, please contact Patrick Peters at ppeters@beneschlaw.com or (216) 363-4434 or Joseph Gross at jgross@beneschlaw.com or (216) 363-4163.

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