May 28, 2021

Liar, Liar, You’re Still Fired!

I was recently asked about employees’ “ludicrous” claims of discrimination.  Here’s one example. An employee was fired after returning to work from FMLA leave to care for her son. She then sued for discrimination and retaliation under the ADA, FMLA, and more. She lost. Why?

As the judge described in this case, the employer presented “exceedingly clear…video footage and photographs [that] confirmed that she had repeatedly lied about the reasons she took leave.” On at least three days she said she was using FMLA leave to care for her son, an undercover investigator hired by the employer found her going to Dunkin’ Donuts, spending one to two hours at the  fitness center, another 1-2 hours shopping, and more.

When the employer met with the employee to get her side of the story (yeah! see Chapter 1 of my book!), the employee refused to view the surveillance footage or explain her activities on the days in question.

The judge also seemed frustrated as he wrote, “My task has been made more difficult by [the employee’s] seeming inability to recall innumerable material events.” The judge then found the employee’s actions to be “abusive and dishonest” and granted the employer’s request for summary judgment.

Employers may find some comfort in the judge’s closing words, “the record shows [the employee] was a less than stellar employee who spent as much time away from work as possible, and repeatedly lied to her employer when she said she needed to take FMLA leave to care for her disabled son…her firing was permissible.”

Lessons Learned?  The judge reminds us:

  • Nothing in the FMLA prevents employers from ensuring that employees who are
    on leave from work do not abuse their leave.
  • 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.

Yes, a person with malintent can still get into court.  Yes, it will still cost you money to present your evidence and defense.  Yes, you CAN win.  It is a win that is hard to celebrate, but good guys do NOT always finish last. Take heart. Presume good intent. And when you find evidence of bad intent, take steps to root it out.