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Employee May Have Been Fired for Taking FMLA Leave

By Business and Legal Reports, Inc.  8/29/2007
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Under what circumstances can an employee who’s already been in trouble for absenteeism bring a successful claim that her employer fired her for taking FMLA leave? A federal court sitting in Illinois recently faced that question.

What happened. Jennifer Smith, a blackjack dealer for Harrah’s Casino in Metropolis, Illinois, had requested and received at least 13 Family and Medical Leave Act (FMLA) leaves during her 12 years at Harrah’s. Her last request for leave, which began on July 14, 2005, raised a red flag with Harrah’s, because Smith had already been in trouble for absenteeism. While she was on leave, Employee Relations Manager Diana Jeffords hired an investigator to surveil Smith. Meanwhile, Jeffords also said that she talked to Smith on the phone during the leave and that Smith told her she couldn’t stand or bend and that she was confined to home.

Jeffords took notes during the conversation about Smith’s alleged limitations but didn’t date them and apparently didn’t present them during the litigation that followed. Because she felt that Smith’s description of her limitations were inconsistent with the investigator’s report, Jeffords thought that Smith had lied. Smith, however, claimed that she didn’t say anything about such limitations to Jeffords, and Smith’s doctor said that he hadn’t restricted Smith to bed rest or told her to stay home.

When Smith returned, she was called to a meeting with managers, where she admitted that she had taken a trip to Florida during part of her leave. She was fired for taking “fraudulent medical leave.” She sued the company, claiming that she had been unlawfully fired in retaliation for taking FMLA leave. Harrah’s asked the court to dismiss the case at an early stage.

What the court said. The issue was whether Harrah’s fired Smith because she took FMLA leave or for a legitimate reason. To establish a causal link between the request for leave and the termination, Smith showed the temporal proximity between her request and her termination. The court said that temporal proximity wasn’t in itself probative, but it also looked at the discrepancy between Jeffords’ statement about Smith’s description of her limitations and Smith’s denial of those statements. Viewing the discrepancy, the court noted that Harrah’s had not given any details about the activities that the investigator saw Smith doing. “That she went on vacation does not, in itself, suggest that her limitations were such that she could work,” the court said.

Based on the combination of temporal proximity and the “suspicious circumstances” surrounding the termination, the court denied Harrah’s motion for early dismissal. Smith v. Southern Illinois Riverboat/Casino Cruises d/b/a Harrah’s Metropolis Casino, S.D. Ill., No. 06-cv-4069-JPG (June 21, 2007).

Professional Pointer:

This employer’s case may have ended differently if the HR manager had been able to produce the notes she said she took and had also presented the investigator’s report that may have supported her argument.

Contributed by BLR, Inc. Read plain-English analysis on Leave of Absence (FMLA) in Illinois.

Editor’s Note: This article should not be construed as legal advice.

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