- On May 20, 2015
FMLA Abuse Case Summary: Smith v Southern Illinois Riverboat
When an employee begins to exhibit a pattern of absenteeism, it would be perfectly reasonable for his or her employer to suspect they might be abusing either company leave policy or their rights under the Federal and Medical Leave Act.
However, employers should resist the urge to jump to conclusions and terminate an employee after a cursory investigation fuels suspicions of abuse.
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In the case of Smith v. Southern Illinois Riverboat, Harrah’s Casino hired an investigator to follow their employee Jennifer Smith when she was suspected of abusing her leave. Based on that investigation and a phone conversation, Harrah’s determined that Smith was indeed abusing her leave, and she was terminated.
Smith started working for Harrah’s in the early 1990s and as an employee she had to abide by the casino’s point-based attendance policy. Under that policy, employees acquired points for unexcused absences, but not when they took time off with permission or under the FMLA. If an employee acquired 12 points during any 12-month period, the casino could terminate that employee.
On March 28, 2005, Smith went through a "documented coaching" because she had accrued 7 points. She was then given a written warning on May 3, 2005 because she had accrued 8 points and after accumulating 10 points, she was given a "Final Written Warning" on July 12, 2005. On that same final warning day, Smith formally entered into an agreement with Harrah's acknowledging this was her last chance to improve her attendance. Smith was ill on July 12, and she asked for and was given paid leave so she could meet her doctor the following day. The request exhausted all her available leave.
After her visit, Smith's submitted a medical certification to Harrah's that had her doctor advising her to rest and avoid stressful situations. The doctor’s note did not lay out any particular limitations on Smith’s activity but did provide a number of dates for follow-up visits.
Upon the suggestion from employee relations worker Jenna Thompson that Smith was “working the system,” employee relations manager Diana Jeffords chose to hire an investigator to watch Smith and capture video of her when she was scheduled for follow-up visits under her FMLA leave.
Jeffords claimed she talked with Smith over the phone while she was on FMLA leave and took notes of their conversation. Jeffords later testified that Smith told her she could not stand up or bend over, adding that she was limited to her home and on bed rest. Jeffords did not date her notes, so she was not sure when that conversation happened. In her deposition, Smith disagreed with Jeffords' account. Smith's doctor also claimed that he did not restrict his patient to bed rest or tell her to keep to her home.
Ultimately, Jeffords concluded that the personal limitations allegedly described by Smith did not line up with reports and video captured by the hired investigator. Harrah’s management decided to then confront Smith about these suspicions in a meeting scheduled for August 15.
At that meeting, management did confront Smith, and she did admit that she had taken a 5-day vacation to Florida in July. After the meeting, management concluded that Smith had abused her leave by lying about her medical status. Smith was fired that same day.
District Court Case
The district court that tried the case noted that Smith did indeed take protected leave under the FMLA. The court also pointed out that she did suffer an adverse employment action. The issue at stake, the court explained, was whether that action was caused by her taking leave.
To prove causation, Smith either had to produce a direct admission by Harrah’s or enough evidence that a jury could infer causation, the court said.
Smith posited that the time between her taking FMLA leave and her termination was enough to dismiss Harrah’s request for summary judgment, which would essentially throw out the case. However, the court said, temporal proximity isn’t always enough to move a case forward.
Smith also argued that the reason Harrah’s gave for her termination infers that her taking FMLA leave was the cause. She said that because her doctor did not say she had restricted activities, Jeffords’ account of the situation cannot be trusted. Therefore, Smith argued, Harrah’s made up the story to “cover” for its actions.
The district court said that the discrepancy between Jeffords account and the doctor’s, as well as the proximity between Smith taking leave and her firing, were enough to infer that it might be possible Harrah’s fired their employee illegally.
The court said by law it had to believe that Smith never called Jeffords and said her movement was restricted. The court said it also had to accept the possibility that Smith never mentioned any limitations in the August 15 meeting.
In the face of these circumstances, the court said, the idea that Smith was fired for legitimate reasons by Harrah’s is not completely supported. The court added that Harrah’s did not provide details regarding its private investigation of Smith. Just because she took a vacation to Florida, the court noted, does not mean she could perform her job.
“When viewed as a whole, the suspicious circumstances surrounding Smith's termination support an inference that her taking of FMLA leave was a ‘substantial factor’ or a ‘motivating factor’ in her discharge,” the court concluded.
While Smith appeared to have later dropped the suit, most likely due to a settlement, the court decision points out that suspicion and a cursory investigation of an employee on leave may not be enough to prevent a prosecution from moving forward.
As part of any investigation, employers should reach out to the employee’s doctor or refer to any FMLA documentation to see what activities cannot be performed due to illness or injury. Knowledge of these restricted activities can then inform any private investigation aimed at establishing FMLA fraud.