A recent decision from the Federal Eastern District of Illinois illustrates the dangers of assuming that a formal approval of medical leave under the Family and Medical Leave Act (“FMLA”) provides an absolute immunity from being fired. While an employer must preserve terms of employment, and must not retaliate against an employee merely because they have filed for FMLA leave, an employee whose leave is otherwise protected by the act can still be terminated for behavior which otherwise violates the policies of the employer or if their behavior calls into question the validity of the leave itself.
The decision from the trial court comes in Yelp Inc. v. Smith, 1:20-cv-01166. The facts are fairly straightforward, even if the motivations of the parties in involved are in dispute. In January 2019, Kirby Smith received that her request to take a trip to Thailand that April was being denied due to her lacking the accumulated vacation time. In March of 2019, Ms. Smith began a course of medical treatment for ongoing back pain, which led to the discovery of a herniated disc in her back, and to her applying for medical leave under FMLA. Ms. Kirby’s doctor certified that her condition interfered with her ability to sit or stand for long periods of time and affected her ability to walk, which would incapacitate her from work until June of 2019. Ms. Kirby then proceeded to take her trip to Thailand in April. When one of her co-workers alerted management about the trip, Ms. Kirby sent a series of texts to a colleague where she repeatedly (in a manner that the court admits was probably in jest) stated that she was going to punch the co-worker the next time she saw her. That colleague also immediately alerted management about the texts.
Needless to say, Yelp, Inc. contacted Ms. Kirby about the trip (which they claimed made them think that Ms. Kirby was being dishonest about her FMLA leave) and the texts (which they stated violated their zero-tolerance policy against “engaging in or threatening violence at any time, whether at work or outside of work.”) When Ms. Kirby did not respond to their satisfaction over the course of several phone calls, Yelp terminated her employment. Ms. Kirby brought suit alleging that Yelp had violated the FMLA, and Yelp filed a motion to dismiss the claim.
In ruling in favor of Yelp, the court points to a number of problems in Ms. Kirby’s claim. First, while FMLA may prevent an employer from firing someone because they took leave, it does not prevent an employer from firing someone who would have been fired even without the leave. The text messages that Ms. Kirby admitted to having sent violated a clear policy, and the court found credible that Yelp would have fired her over such texts regardless of whether she was actually working at the time. Basically, FMLA won’t protect an employee just because they happen to be on leave at the time they commit a fireable offense.
Second, Ms. Kirby argues that the termination was in retaliation for her exercising her rights under FMLA, but she also admits that she thinks that Yelp fired her because she went on the trip to Thailand. The court points out that even if this was the case, and it wasn’t the text messages, this still can’t save the claim. Having a doctors note say that you are so physically limited in sitting and standing that you can’t work, and then going on a vacation that requires extended air travel does look rather suspicious. If an employer has a reasonable suspicion about the FMLA leave it does have the right to investigate. The larger problem, though, is that Ms. Kirby presented no real argument that it was the FMLA leave itself that led to her termination. Employers cannot terminate employees just for taking FMLA leave. They can, however, terminate an employee for abusing their leave. Taking FMLA leave off work is a legally protected activity—going on vacation to Thailand is not. In a retaliation claim it is the motivation that matters, and the court felt that Ms. Kirby simply had no chance of proving that Yelp fired her for engaging in a protected activity, given the other actions that she had admittedly engaged in.
Obviously the court doesn’t have any way of knowing with certainty why any of the parties took the actions that they did, here. It’s possible that Yelp was going to violate the FMLA and fire Ms. Kirby regardless of what she would have done. But it was inarguably her actions that gave them the excuse that they needed in order to do so. We’ll have to wait to see if she appeals the district court’s decision.
Attorney Travis Dunn