Intermittent FMLA is a real headache for employers.  Many employees use it legitimately, but then there are those “players” who learn how to game the system. The employer’s challenge then becomes terminating such an employee without losing a retaliation lawsuit.

In the case of Capps v. Mondelez, Frederick Capps began working in 1989 for Nabisco which was later acquired by Mondelez, one of the world’s largest snack companies. He worked on and off at the company as a mixing technician, which involved loading ingredients into and operating the mixing machine that makes dough.  He was a union employee.

In 2002, Capps was diagnosed with Avascular Necrosis, a degenerative bone disease. As a result, Capps had both of his hips replaced in 2004. He was certified for FMLA leave following this procedure, and was recertified approximately every six months for intermittent FMLA leave. For his recertification covering January 24, 2013 through July 23, 2013, Capps’s physician noted that his condition had deteriorated and there would be periods when he would require full bedrest due to “exacerbations.” Mondelez’s third-party administrator approved this recertification, noting that Capps “may need to be off 1–2 times every month for a duration of up to 14 days per episode for incapacity and treatment appointments.”

That was when the gaming began.  On Monday, February 11 and Tuesday, February 12 Capps took FMLA leave due to pain in his hips, and returned to work on February 13. Then the next day, February 14, Capps was scheduled to begin his mixing shift at 1:00 p.m. He called Mondelez’s phone system at 11:13 a.m. and the FMLA message line at 1:01 p.m., stating that he would be late to work because of leg pain. He called Mondelez’s system again at 2:15 p.m. and the FMLA message line at 2:12 p.m. stating that the pain had not subsided and he would be taking a full FMLA day.

Later that same day Capps went to the local pub to meet friends for dinner, and had three beers and three shots. On his way home, he was arrested for DUI.  The next day was Friday, February 15, and Capps was again supposed to be at work at 1:00 p.m. But he called Mondelez’s phone system at 10:50 a.m. and the FMLA message line at 10:51 a.m., stating that he was taking another FMLA leave day due to continued leg pain. He returned to work as scheduled on Monday, February 18.

Capps never reported the DUI. A year later the HR Manager received anonymously in his mail box an article about Capps being arrested for DUI the previous year. He researched the date and found that it coincided with Capps’ FMLA requests. A further review of court dockets found that Capps’ court appearances also coincided with his FMLA requests.  

The HR manager held a meeting with Capps and his union representative, confronted him with the possible falsification of documents, demanded medical documentation to confirm the FMLA need on specific dates, and suspended him pending further investigation. Capps provided two doctor’s notes for the time off in February 2013, but the notes were suspicious because the doctor commented on legal matters (his appearance at court). 

Mondelez terminated Capps effective February 26, 2014, for violations of the “Company Dishonest Act Policy.”  Capps grieved and lost.   Capps then sued for interference with his FMLA rights and ADA discrimination among other things.

At summary judgement, the trial court judge moved in favor of Mondelez. Capps failed because Mondelez never interfered with his FMLA rights, but only a year later, based on the false documents, terminated Capps.  The court also reviewed whether the case should have been an FMLA retaliation claim, but then concluded that the company did not retaliate when Capps provided false documentation to prove need for FMLA leave.  The time period was too distant from the time of the FMLA leave, and Capps could not show any antagonism directed towards his taking the leave.  In addition, Capps had been offered reinstatement without back pay during his grievance hearing, but he refused to settle the grievance.

It was important that Mondolez did not focus on the DUI as such. Its sole focus throughout the case was Capps’ dishonesty. The company had a strongly-worded policy on employee dishonesty including dishonesty in the context of FMLA, using such language as “. . . false information . . . regarding the need for FMLA leave . . . fraudulent use of FMLA leave . . .”

The takeaway for HR is simple.  Make sure your organization has policies against providing false information in any documentation to the company which will lead to possible termination. And investigate thoroughly any documentation that may be false.  And finally, with legal advice and counsel, do not hesitate to confront the employee with the falsehoods or be afraid to terminate when necessary.

Source: Capps v. Mondelez Global LLC, Case No. 14-CV-04331 (E.D. PA. Nov. 24, 2015)