FMLA Articles

Employee misled supervisor about time off; loses case


Fired for dishonesty Danielle, an employee, was looking forward to her sister’s upcoming wedding. She planned on helping her mom, who was disabled, travel to it, as the wedding was in the Azores. In order to help her mom, she asked for time off from June 1 – 14. Leroy, Danielle’s boss, however, approved her time off only from June 3 – 14. From there, the communication got complicated. Another supervisor, Edgar, told her that she was approved for leave from 1 – 14. With this information, Danielle began buying plane tickets. Leroy maintained that she was expected to be at work on June 1 and 2. Despite this, Danielle entered her time off into the company leave-tracking system as lasting from June 1 – 13.

Danielle did not tell Leroy that she had bought her plan tickets, but she did mention something about her mom’s difficulties to him. He suggested that she look into taking FMLA leave. Danielle did just that and requested FMLA leave for June 1 – 17.

In the meantime, another manager sought confirmation that Danielle would be out from June 1 – 17. Even though Leroy had told her that her leave would not start until June 3, Danielle did not correct this later manager’s understanding.

Leroy learned that the leave-tracking system had Danielle out on June 1 and 2, and directly ordered her to be at work those days. Danielle refused, saying that family came first. She did not, however, inform Leroy that she had applied for FMLA leave to care for her mother.

On June 1, Danielle left for her trip and called in just before her shift, telling the manager on duty that she was taking FMLA leave.

The next day, Leroy filed a complaint against Danielle for disobeying a direct order, among other things.

After an investigation, Danielle was found to have violated three company rules: making misleading or inaccurate statements, committing a deceptive act, and acting in a prejudicial manner. While two of these violations involved suspension, one — deceptive acts — involved termination. The investigation illustrated that several of Danielle’s statements and her portrayal of events were directly contradicted by supervisors’ statements, contradicted one another, or were inconsistent with the facts of the case. The company concluded that she manipulated her chain of command in order to get her desired time off. She was terminated, and she sued.

The court found, in short, that Danielle was fired for her dishonesty, not for reasons related to her FMLA leave. The dishonesty was a legitimate, non-retaliatory reason for the termination. The employer was given summary judgement.

The case involved several different people, and varying communications with some suspicious information. Danielle did not clarify her leave when situations called for it; instead, letting some supervisors move forward with incomplete or insufficient information. The FMLA generally does not protect employees who would be terminated for their actions unrelated to FMLA protections.

Simon v. City and County of Denver, Tenth Circuit Court of Appeals, No. 18-1310, September 24, 2019.  

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


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