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Extraordinary Employee Misconduct: FMLA Does Not Cover Travel to and from an NFL Game

By Chad M. Horton - Shawe Rosenthal LLP

March 12, 2020

This installment in our occasional series of extremely poor judgment by employees illustrates the point that social media has led to the downfall of many an FMLA abuser.

In Pizarro v. International Paper Co., the plaintiff employee worked at the Employer’s facility in south New Jersey, just outside of Philadelphia. In 2002, the employee was diagnosed with Type-2 diabetes. He also suffered from neuropathy, which results in pain and swelling in his feet. Since 2002, the employee had requested and been granted intermittent FMLA leave. Importantly, he had never been disciplined for requesting or using FMLA leave.

In December 2018, the employee and his wife planned to attend an NFL game between the Philadelphia Eagles and Dallas Cowboys in Arlington, Texas. The game had significant playoff implications for both teams. For our malingering employee, his actions before and after the game would also have significant implications for his employment.

The employee was scheduled to fly to Texas at 8:25 p.m. the Saturday evening before the Sunday game. That Saturday, the employee was scheduled to work from 3:00 a.m. to 3:00 p.m. Plenty of time to work, pack a bag, and be early for the flight, right? But the employee called off his Saturday shift, claiming to be “sick.” (Maybe he is a chronic over-packer and needed more time to pack?) The employee flew to Texas as scheduled, tailgated before the game, stood for much of the game, and walked a significant distance from the stadium following the game. All the while, our anti-hero and his wife were (foolishly) posting photos on Facebook to document their fun. The employee was scheduled to fly home early the following morning, which would have provided him enough time to make it to work for his scheduled shift beginning at 3:00 p.m. But just minutes after texting a coworker that his departing flight was delayed, the employee called the Employer’s FMLA hotline and again claimed he was sick and unable to work that day.

A supervisor who saw the employee’s photos on Facebook forwarded the pictures to management and human resources. The supervisor also learned of the employee’s text to a coworker that his Monday flight had been delayed, of which he also notified management. The Employer investigated and (quite reasonably) concluded that the employee had called off from work on Saturday to prepare for his trip to Texas and the Monday after the game due to his flight delay – neither of which was a legitimate FMLA reason! Thus, the Employer terminated the employee for falsifying company reports. Unwilling to admit that he had been caught, the employee doubled down and filed suit alleging FMLA interference and retaliation!

Unsurprisingly and reassuringly, the district court granted the Employer’s summary judgment motion and threw out the case. The court found that the employee could not establish that the any legitimate and protected use of FMLA leave was the reason for his termination. The court was not troubled that the employee was fired three days after his return from Texas. Rather, the court made the obvious point that termination often occurs close in time to when FMLA abuse is discovered! In addition, the Employer had granted the employee’s FMLA requests for approximately 17 years, and had never disciplined the employee for requesting or using FMLA leave. Nor could the employee produce evidence that the Employer disciplined other employees for requesting or using FMLA leave. The court found that the termination was based on a legitimate, nondiscriminatory reason – specifically the employee’s misuse of FMLA leave.

Yet another lesson about oversharing on social media…

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