Family Medical Leave Case Summary

Vail v Raybestos Products Co.

Many employees take leave from work under the Family and Medical Leave Act for reasons consistent with the act’s intention: giving workers a chance to cope with either their own or their immediate family member’s military or serious medical condition.

However, some employees out on leave under the FMLA may not be staying home because they cannot work, and are actually doing physical labor while away.

FMLA CASES: Vail v Raybestos Products Co.

This seems to be the case with Diana Vail who was released from her job in 2005 after her employer received evidence that she was mowing cemetery lawns while out on FMLA leave for incapacitating migraine headaches.

Case background

By all available accounts, Diana Vail was a good worker for Raybestos Products Company, a maker of car parts. Vail worked third shift for the company, meaning her shift started 10:45 p.m. and ended at 6:45 a.m. the next day.

However, Vail’s work at Raybestos was affected by debilitating migraines. Her superiors knew of her condition and had validated the use of intermittent leave under the FMLA in April 2004. Intermittent leave can be taken in blocks of hours or days, for a cumulative total of 12 weeks over a 12-month period.

From May through September 2005, Vail took over 33 days of intermittent leave. Considering the fact that her migraines came on quickly and without notice, Vail would often call off of work just ahead of her evening shift to say that she would not be working that night. As the summer of 2005 moved on, Vail used more and more intermittent leave, causing her supervisors to wonder if her requests were due to something other than migraines. Their suspicion most likely came from the knowledge that Vail’s husband ran a lawn-mowing business and she helped him from time to time.

Among her husband’s customers were many cemeteries, which commonly chose to have work done at the quiet times during the week. With the summer and fall being the busy seasons for mowing in Indiana and Vail’s leave starting to build up, management at Raybestos made a decision to monitor their employee while she was on intermittent leave and hired a sergeant in the Indiana Police Department to watch Vail’s activities while he was off-duty.

After leaving work on October 6, 2005, Vail went to see Dr. Amber Hussain, her general practitioner. Hussain prescribed a new blood-pressure medication to treat Vail’s migraines and directed her not to work for 24 hours after first taking the medicine. Subsequently, Vail called ahead of her shift later that day to ask for leave, which Raybestos approved.

At around 10:16 a.m. the next day, Vail called Hussain and asked her to send a note to Raybestos explaining why she had missed work on the evening of October 6, which she did. Approximately 10 minutes later, Vail left her house and gassed up two lawn mowers close to her house, the whole time being watched by the off-duty police officer hired by Raybestos. She then took both mowers to the New Richmond Cemetery where she and someone else mowed the lawn. Upon witnessing this, the off-duty sergeant called Raybestos to provide his report.

That afternoon, Vail contacted Ravbestos again saying that she would be asking for medical leave for her shift beginning that night due to the start of a migraine. Before this call, Raybestos had acquired the doctor’s note, which it took as a different intermittent leave request for October 7.

The investigator’s report led staff at Raybestos to believe that Vail was abusing her intermittent leave. Also, if Vail was being gainfully employed while on leave – she would be violating the terms of her union’s collective bargaining agreement.

Based both on the suspected leave violation and violation of the bargaining agreement, director of human resources at Raybestos, Elizabeth Sowers, called Vail’s union to say that she would be firing Vail – a decision the union did not argue.

When Vail came into work the next day, her supervisor told her that the company was releasing her. The following day, Vail met with Sower, her department manager, and her union representative. The union rep told her the situation was being considered an open-and-shut case from the union’s point of view. During that meeting, Vail also learned of the investigator’s report on her activity, which she did not contest.

On October 7 at 10:45 p.m. – Vail was given her termination notice, which she signed. She did not subsequently file a grievance with her union. However, she did ultimately file a lawsuit, arguing that Raybestos violated the FMLA and breached the collective bargaining agreement in firing her.

The appeal case

After district court had granted summary judgment in favor of Raybestos, Vail pursued an appeal in the United States Court of Appeals, Seventh Circuit.

First, the appellate court handled the issue of a potential breach of the collective bargaining agreement. Vail said that since she mowed the lawns during a time that she was not scheduled to work – she was technically not working while on leave. The court held that there are other, more prudent ways for handling contract disputes than in a US Court of Appeals and therefore declined to rule on the matter.

Next, the appellate court handled the issue of a possible FMLA violation. The court noted that while the federal act does protect a worker’s right to take intermittent leave and then come back to their job as if they never left – the right to reinstatement is not absolute.

The court said that to make a case for FMLA interference – Vail needed to show that she was taking the leave for the intended purpose of the law. An employee can refute a worker’s claims by showing an evidence-backed honest suspicion that leave is being abused, which Raybestos was able to do through monitoring of Vail.

Based on these facts, the appellate court affirmed the district court’s judgment.

The takeaway

Many employers suspect that their workers are abusing leave, but aren’t able to confirm their suspicions. It should be understood that what was once considered an open and shut case made it all the way to an appellate court.


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