News & Resources

TLG Establishes New Employment Law in the Third Circuit

Leslie M. Greenspan, Esquire led a TLG trial team that established new law in the Third Circuit in the employment realm.  This precedent-setting litigation is a significant victory for employers litigating Family and Medical Leave Act (FMLA) retaliation claims.  On January 30, 2017, the Third Circuit Court of Appeals adopted TLG’s argument that the “honest belief” defense can overcome a retaliation claim under the FMLA.  The opinion confirmed an employer’s right to terminate an employee for suspected abuse of FMLA leave – a legitimate and non-discriminatory basis for termination.

In Fredrick Capps v. Mondelez Global LLC, the employee had been approved for intermittent FMLA leave for many years based on a medical condition that required “full bedrest during exacerbations,” according to the employee’s certifying physician.  He invoked his FMLA leave and called out of work because of leg pain for two days in February 2013.

Approximately one year later, the employer learned that the employee had been arrested for and convicted of driving under the influence (DUI) and sought to determine whether the employee’s absences coincided with the timing of his arrest and conviction.  Upon investigation, the Human Resources department noticed that there was overlap between the arrest date and criminal court dates and the employee’s intermittent FMLA leave usage.  HR confronted the employee with this suspicious overlap of dates.  In response, the employee promised to provide documentation supporting his FMLA leave, but he never did.  The employee was terminated pursuant to the employer’s company policy prohibiting dishonest acts because of the suspected misuse of his FMLA leave. The employee filed suit alleging violations of the FMLA as well as the Americans with Disabilities Act (ADA).

Through discovery, the employer learned that on those two dates in February 2013 when the employee called out of work under the FMLA for leg pain, he actually went to the local bar, drank shots and beers with friends over the course of nearly three hours, attempted to drive home, and was pulled over by police.  His blood alcohol concentration was 0.339% – more than four times the legal limit in Pennsylvania.

Adopting precedent from the Seventh and Eighth Circuit Courts of Appeals, and following its own prior non-precedential opinions, the Third Circuit formally recognized that the honest belief defense could overcome the employee’s FMLA retaliation claim.  The employer provided evidence “clearly supporting its legitimate, non-discriminatory explanation for why Capps was discharged – its honest belief that Capps misused his FMLA leave and was otherwise dishonest in violation of Mondelez’s policies.”  Moreover, there was no evidence of pretext, even if the employer was mistaken in its honestly held belief.

In addition to affirming the grant of summary judgment on the FMLA retaliation claim, the Court affirmed on both FMLA interference and the ADA claim.  As to the FMLA interference claim, the Court found that the employee was not deprived of any benefit to which he was entitled.  Rather, he had been returned from his FMLA leave in February 2013 to the same position he had left.

In connection with the ADA claim, the EEOC had filed an amicus brief and participated in oral argument.  The Court held that although a request for FMLA leave may qualify, under certain circumstances, as a request for a reasonable accommodation under the ADA, there was no record support for discrimination under the ADA or a refusal to accommodate any request for a reasonable accommodation.  The Court assumed, arguendo, that the employee’s requests for intermittent FMLA leave constituted reasonable requests for accommodation under the ADA as well, but, significantly, did not hold that every request for FMLA leave is automatically a request for a reasonable accommodation under the ADA.

Tucker Law Group represented Mondelez in this case from the time of the administrative action, throughout the district court and appellate court process.  TLG advises employers facing similar claims that:

  • If you suspect that one of your employees is misusing FMLA leave, investigate thoroughly, document your investigation efforts, and keep detailed records.
  • Be clear on whether the employee has requested only FMLA leave, as opposed to a request for a reasonable accommodation under the ADA. In some instances, it can be both.

Contact TLG to make sure that the termination letter is consistent with the “honest belief “ of misuse of FMLA leave to avoid any support for a pretext argument.