Termination for Dishonesty Did Not Violate FMLA

By Michael R. Link December 27, 2017
Termination for Dishonesty Did Not Violate FMLA

An employer that terminated a worker for dishonesty did not violate the Family and Medical Leave Act's (FMLA's) prohibitions against interference or retaliation, according to the U.S. District Court for the Northern District of Texas.

Southwest Airlines employed the plaintiff as a flight attendant beginning in 2014. The plaintiff resided in Tampa, Fla., and commuted to an airport in Baltimore.  Her employment was subject to a collective bargaining agreement (CBA) that contained a points-based attendance policy. The CBA also included a commuter policy providing that flight attendants who commute to work via air travel would not be assessed attendance points if they were late because their commuting flight was full or delayed.

On June 7, 2015, the plaintiff notified Southwest that she would be absent from work for four days due to sinusitis. The following day, Southwest sent her an FMLA notice and advised that she was eligible for FMLA leave. Southwest also outlined the process required to secure covered leave and directed her to submit an application by June 23, 2015. The plaintiff never submitted an FMLA application.

[SHRM members-only how-to guide: How to approve or deny a request for FMLA leave]

On June 24, 2015, she called Southwest and stated she would be late for her shift because her commuter flight was delayed. She first sought to invoke the commuter policy in order to avoid incurring attendance points; however, when informed that her flight did not qualify under the policy, she responded that she was instead calling in sick.

Southwest conducted an internal investigation based on the phone call and ultimately terminated her for dishonesty on July 7, 2015.

The decision to terminate was based on multiple factors, including that the plaintiff:

  • Was cheerful during the call until she learned the commuter policy did not apply, at which point she became hostile.
  • Went to the airport dressed in uniform and prepared to work.
  • Only stated she was calling in sick after learning the commuter policy did not apply.
  • Asked about the difference in penalty points for a no-show versus a sick call.
  • Reserved her flight the night before and was dishonest about deciding "last minute" to book the flight.

The plaintiff filed a lawsuit alleging that Southwest interfered with her requested FMLA leave and terminated her for attempting to exercise her FMLA rights. The district court ultimately granted Southwest's motion for summary judgment and dismissed the lawsuit.


In its analysis, the court first addressed the plaintiff's claim for FMLA interference and explained that one requirement of such a claim is that the employee gave proper notice of intent to take leave. Additionally, the FMLA allows an employer to condition leave on compliance with the employer's usual notice and procedure policies.

Here, the court found that the plaintiff did not properly notify Southwest of her intent to take FMLA leave because she never submitted an application as instructed and as specifically required by Southwest policy. This failure precluded any protection under the FLMA and defeated her claim for interference. Moreover, even if she had provided proper notice, the court held that her dishonesty gave Southwest a legitimate, nondiscriminatory reason for her termination.

The court then addressed the plaintiff's claim for FMLA retaliation and found that she had failed to offer any argument on this claim at summary judgment and, therefore, judgment for Southwest was appropriate.    

DeVoss v. Southwest Airlines Co., N.D. Tex., No. 3:16-CV-2277-D (Nov. 13, 2017).

Professional Pointer: This case presents employers with a good reminder of the potential pitfalls surrounding FMLA leave and lawsuits alleging interference and retaliation. An employer can take a good first step in combating such claims by following well-defined internal procedures, including specific notice requirements. Furthermore, an employee isn't afforded unlimited protection merely by requesting FMLA leave, particularly if the employee has violated company policies.

Michael R. Link is an attorney with Seaton, Peters & Revnew, the Worklaw® Network member firm in Minneapolis.


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