Extraordinary Employee Misconduct: Making Snowboarding Movies While on FMLA?

By Evan Conder - Shawe Rosenthal LLP

October 8, 2021

It’s not surprising that employers don’t approve of employees “shredding the gnar”* when they’re supposedly unable to work because of a serious medical condition. And that’s exactly what happened in Botelho v. Mayorkas, where a former Behavior Detection Officer for the TSA who worked at the Honolulu International Airport was fired for Family and Medical Leave Act abuse after his employer discovered that he was making snowboarding movies while apparently using FMLA to take an extended vacation.

Now, just to remind you, the FMLA (which applies to employers with 50 or more employees) provides up to 12 weeks of leave to eligible employees for certain reasons, including the employee’s own serious health condition.  Such serious health conditions must involve either inpatient care (i.e. overnight in a hospital) or an incapacity with continuing treatment. “Incapacity” means the inability to work, attend school or perform other regular daily activities due to the serious health condition (including treatment and recovery). And obviously, while on an FMLA leave, an employee should not be engaging in activities that are inconsistent with the serious health condition that is supposedly preventing them from working.

In March of 2009, the employee applied for and was granted intermittent FMLA leave for his diabetes.  In December of 2010, the employee traveled to Canada to “check on his rental properties.”  The employee was accompanied by two friends who were filming a television show, “Board Stories,” for which our snowboarding employee was listed as an executive producer. While in Canada, the employee experienced a diabetic reaction and his doctor informed him that that he should not fly home until he “felt better.” The employee called his employer to let them know he would be taking two weeks of FMLA leave before returning to work in Honolulu.  But, although the employee was supposedly too ill to return to work, he accompanied his friends to a ski resort, and was filmed snowboarding for his show during his FMLA leave.

Meanwhile, back at work, the employee’s second-level supervisor informed his first-level supervisor that the employee was absent from his shift on FMLA leave.  However, the first-level supervisor told the second-level supervisor that it was common knowledge that the employee went skiing each year around that time.  Questions and eyebrows were raised.

So after the employee’s return, the TSA’s Office of Inspection formally investigated the employee’s possible misuse of FMLA, which included viewing a Board Stories video featuring the employee.  Completely coincidentally, I’m sure, the employee stopped reporting to work shortly after the investigation concluded, submitting a doctor’s note stating that the employee was unable to work and that it was not clear when he would be able to return.  The employee was eventually terminated after he failed to return from a seven-month leave.

The employee then sued, claiming that he had been retaliated against due to an EEO complaint that he had filed, and then withdrew, almost seven years prior to his termination.  The federal court, however, shredded his claim.  It found that the TSA had set forth a legitimate, non-retaliatory reasons for the employee’s termination: FMLA abuse (and also, well, the employee apparently couldn’t work at all).  Specifically, the employee’s activities while in Canada, including socializing, snowboarding, and assisting with the snowboarding television show were certainly inconsistent with his claimed debilitating diabetic reaction.

So this case reminds employers that FMLA does not provide complete immunity to employees. If an FMLA snow job is suspected, a careful and thorough investigation may allow employers to establish legitimate grounds for termination. But employers should be careful and consult with counsel to make sure that the employee’s activities are, in fact, inconsistent with their claimed FMLA incapacity.

*Editor’s note: “shredding the gnar” is a much cooler way to say “snowboarding.” I didn’t know that. Thanks to Evan for expanding my vocabulary. I feel practically hip.