NJ District Court Gives Employers Hope in the Fight Against FMLA Misuse
On May 28, 2021, the U.S. District for New Jersey in VanHook v. Cooper Health Systems, granted Cooper’s summary judgment against its employee’s discrimination and retaliation claims under the Family and Medical Leave Act (FMLA), the Law Against Discrimination (NJLAD), and the Americans with Disabilities Act (ADA). The employee claimed she was discriminated against because she took leave under FMLA for her and her son’s disabilities. The employer urged that the employee was fired due to her repeated lies about the reasons she took FMLA leave. The District Court agreed with the employer that the record confirms the employee’s abusive and dishonest actions and granted the employer’s motion of summary judgment.
Marsha VanHook began working for Cooper Health Systems in 2010 as a secretary and was subsequently made a Professional Services Representative. She has two sons that reside with her, Michael and Sean. In 2013, Cooper approved VanHook for intermittent FMLA leave to care for Michael. VanHook claimed Michael had been diagnosed with ADHD and Oppositional Defiant Disorder, was prone to aggressive outbursts, must be taken to medical appointments, and required constant supervision.
In 2016, VanHook was cited on two occasions for being unprofessional. VanHook did not challenge either citation through Cooper’s formal system. VanHook claims that she was diagnosed with an acute stress disorder, experiencing depression, severe anxiety, panic attacks, and related symptoms. She took medical leave from October 2016 to December 2016, after having a nervous breakdown. Cooper never refused any of VanHook’s requests for leave.
After VanHook’s supervisor apparently criticized VanHook’s use of FMLA leave, VanHook asked to be transferred to another location and department. VanHook claimed that her new supervisor, Bonnie Mannino, made frequent negative comments regarding her use of FMLA leave to care for herself and her disabled son. VanHook hired a lawyer and began making complaints of discrimination and harassment against Mannino.
On December 27, 2017, Mannino admonished VanHook for her ten unscheduled days off within nine months and her unprofessionalism when communicating with employees and patients. VanHook signed the Disciplinary Action Forms, but did not file a grievance under Cooper’s formal process. That same day, Mannino told HR that VanHook had taken 500 hours of FMLA leave in the past year, when only 480 hours are allowed. Mannino testified that a coworker told her that VanHook used the FMLA leave for reasons other than to care for Michael.
In early 2018, VanHook complained again that Mannino was harassing her for her supposed abuse of FMLA leave. Some Cooper employees exchanged emails discussing VanHook’s FMLA leave, and that she took time off under FMLA for reasons that did not qualify. Cooper hired a private investigation firm to surveille VanHook on three dates on which she took FMLA leave to care for Michael. Their written reports were confirmed by photographs and video footage.
The investigator found that on those three occasions, VanHook made trips to the gym, coffee shop, and grocery store when she said she had to take Michael to doctor’s appointments. On one of the days, she claimed Michael could not be left alone on a day off from school, but Michael’s father was home. On another occasion, VanHook claimed she had to take Michael to doctor’s appointments, but she only took Sean.
On March 21, 2018, HR met with VanHook to ask her about her use of FMLA time on those three dates. VanHook provided no explanation for her behavior. VanHook was fired later that day for inappropriate use of FMLA time. VanHook filed her complaint and Cooper moved for summary judgment.
DISTRICT COURT DECISION
VanHook made numerous claims of discrimination, retaliation, and harassment under the ADA, NJLAD, and FMLA. Although the decision discusses all of these claims, this article focuses solely on VanHook’s FMLA claims and fraud. To prevail on a retaliation claim under the FMLA, the plaintiff must prove that she invoked her right to FMLA-qualifying leave, she suffered an adverse employment decision, and the adverse action was causally related to her invocation of rights.
Cooper maintained that it fired VanHook due to her misuse of FMLA time. VanHook argued that comments made by Cooper staff and the hiring of the private investigator were discriminatory and made without any reasonable suspicion of abuse. She further claimed that the investigator’s reports did not support Cooper’s decision to fire her.
Previous cases establish that nothing in the FMLA prevents employers from ensuring that employees on leave from work are not abusing their leave. The Court here found that Cooper had reasonable grounds to investigate VanHook, who continually took leave. Cooper staff suspected misuse before hiring the investigator. Numerous emails between staff members demonstrated discussion about VanHook’s abuse of FMLA. However, Cooper took no adverse employment action until it had evidence from the investigators of VanHook’s wrongdoing.
VanHook argued that the investigator reports did not demonstrate abuse. However, videos and photos from the three days demonstrate VanHook doing activities unrelated to caring for her son Michael. The FMLA does not prohibit the termination of an employee who abuses her leave. Courts have found dishonesty to be a legitimate and nondiscriminatory reason for termination and found FMLA leave only allowed for caring for a child, not for other business after caring for the child. The 9th Circuit in particular, held that a plaintiff that was not in close and continuing proximity to the sick person was misusing leave under the FMLA.
VanHook claimed that while she was not caring for Michael, it was because he was having an in-home therapy or schooling session but could not provide evidence of such sessions or remember what she did on those days. VanHook could not refute the investigator’s evidence, which supported her termination. Cooper was not required to show that VanHook actually abused her leave, only that it had a good faith reason to fire VanHook. The question was whether the employer’s decision was motivated by discriminatory animus.
The 3rd Circuit has previously held that “FMLA retaliation claims require proof of the employer’s retaliatory intent. Where an employer provides evidence that the reason for adverse employment action taken by the employer was an honest belief that the employee was misusing FMLA leave, that is a legitimate, nondiscriminatory justification for the discharge.”
The Court found that there was ample evidence demonstrating that VanHook was an insufficient employee, who repeatedly lied to Cooper about when she needed to take FMLA leave to care for her disabled son. VanHook’s abuse of her FMLA time constituted a permissible reason for her firing, and the Court granted summary judgment in favor of Cooper.
The District Court’s decision demonstrates that employers are not defenseless in the face of employee FMLA misuse. Employers who reasonably suspect an employee is abusing FMLA leave may investigate such use in good faith. Employers should provide a formal grievance process for discrimination claims and refrain from taking retaliatory action, so as to avoid lawsuits like the one above. Employers should also document all evidence of FMLA use and abuse.
For more information regarding this decision and best practices on how to effectively manage FMLA and other leaves of absence, please contact John C. Petrella, Esq., Chair of the firm’s Employment Law & Litigation Practice Group via email here or Dina M. Mastellone, Esq., Chair of the Human Resources, Counseling & Compliance Practice Group via email here or call 973-533-0777.