In Warwas v. City of Plainfield, the Third Circuit Court of Appeals has held that an employee can be terminated while on FMLA leave if the employer honestly believes the employee failed to use her FMLA leave for the intended purpose. Warwas v. City of Plainfield, Court of Appeals, 3rd Circuit 2012.
Dr. Warwas worked as a Health Officer for the City of Plainfield. After she developed job-related peptic ulcers and clinical depression, Warwas’s physician certified that Warwas “was restricted to home and could not work/attend school.” The City of Plainfield granted Warwas FMLA leave. When the City of Plainfield determined that Warwas was working a part-time job she had with the City of Paterson, New Jersey, while on FMLA leave, Plainfield terminated Warwas’s employment. After a disciplinary hearing, the charges were sustained. Warwas appealed to the Merit System Board, which transferred the matter to the Office of Administrative Law. An administrative law judge (ALJ) then determined that Warwas did not commit any misconduct because her part-time work “was neither on City time nor in any way concealed” and that she “engaged in outside employment on her own unused sick or vacation time for which she was charged during her sick leave.” However, although the Merit System Board adopted the ALJ’s factual findings, it determined that Warwas’s utilization of paid sick time while she engaged in secondary employment was prohibited. Furthermore, the Board determined that termination was “too harsh a penalty;” ordered Warwas’s immediate reinstatement and modified the punishment to a fine and an official written reprimand. Neither party appealed the decision.
Upon Warwas’s return to work with Plainfield she was informed that her office was unavailable and that she should return in two days, however the parties dispute whether
Warwas ever returned to work. What is clear is that three weeks after being told her office was unavailable, Plainfield informed Warwas that she was on unauthorized leave without pay and that further absences would result in her termination. When she failed to report to work for the remainder of the week, Plainfield issued a preliminary notice of disciplinary action. Warwas never requested a hearing, and Plainfield terminated her employment.
Warwas brought this action. After the close of discovery, Plainfield moved for summary judgment. The District Court entered judgment against Warwas. Warwas appealed, alleging that Plainfield interfered with her FMLA rights by terminating her employment while she was on leave.
The FMLA permits eligible employees to take up to “12 workweeks of leave during any 12-month period,” 29 U.S.C. § 2612(a)(1), if a “serious health condition . . . makes the employee unable to perform the functions of the position of such employee,” To prevent an employer’s interference with this leave, the FMLA grants employees a cause of action, an interference claim. To assert an interference claim, a plaintiff must prove that she was denied benefits that she was entitled to under the FMLA. The FMLA, however, does not prohibit the termination of an employee who abuses her leave, id. at 121; Crouch v. Whirlpool Corp., 447 F.3d 984, 986 (7th Cir. 2006), nor does it shield an employee from dismissal merely because the alleged misconduct occurred while on leave. Callison, 430 F.3d at 121. Consequently, an employer may defeat an FMLA claim if the discharge was based upon the employer’s honest belief that the plaintiff either misused or failed to use her medical leave for the intended purpose. Crouch, 447 F.3d at 986.
The record clearly indicates that Plainfield terminated Warwas for reasons entirely unrelated to the exercise of her rights under the FMLA. It is also beyond dispute that Plainfield believed Warwas failed to use FMLA leave for the intended purpose when, despite her assertion and a doctor’s note that a serious medical condition prevented her from working, she worked for Paterson while on sick leave. Warwas is not entitled to a greater degree of protection for violating Plainfield’s Municipal Code merely because she was on FMLA leave when caught and terminated. Consequently, Warwas was terminated not for her use of FMLA leave, but rather for the perceived misuse of the leave and for her failure to return to work.
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