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Employers often complain about employees they believe are abusing Family Medical Leave. For one employer, BNSF Railway Company, the abuse took the form of a Beyoncé concert. 

In Michelle Jackson v. BNSF Railway Company, the plaintiff, Jackson, was a marketing manager.  Jackson struggled with the volume of her work and admitted as much to her superiors via e-mail.  She was placed on a performance improvement plan and a few days later experienced a psychological breakdown.  Jackson saw a doctor and wrote her supervisor an email that said she was not well and could not return back to work. 

A few days later Jackson attended a Beyoncé concert in the Company’s suite at AT&T Stadium. One of her co-workers saw her and reported it to her supervisor because he thought Jackson was out sick.  Based on her concert attendance the Company suspected Jackson was abusing her FMLA leave.  The Company tried to set up a meeting with Jackson to talk about her attendance and Jackson responded she could not meet because she had not been released by her doctor.  The Company responded that if they did not talk to her by the end of the day she would be terminated.  Jackson did not respond, and the Company terminated her employment.

Jackson brought FMLA interference and retaliation claims against the Company. The Court granted the Company’s motion for summary judgment because it found the Company had an honest suspicion of abuse on the plaintiff’s part (in part based on its attempt to discuss its suspicions with Jackson and her refusal to cooperate) and therefore demonstrated a legitimate non-discriminatory reason for termination – i.e. belief plaintiff was abusing her FMLA leave. 

While this case should give employers some comfort that it is possible to take action when an employee is abusing FMLA leave, each case is fact specific. Here, the plaintiff went to a concert in the Company’s own suite while she was supposed to be out on leave.  Rarely are the facts so favorable to management.  Additionally, here the plaintiff refused to cooperate with the Company when it reached out to her regarding her leave and concert attendance.  This hurt her argument in the Court’s view.  Despite this encouraging decision, employers should proceed with caution before terminating an employee who is out on FMLA leave and seek competent legal counsel to navigate the process. 

Brody and Associates regularly advises management on complying with state and federal employment laws including leave laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.