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August 17, 2010

Employer’s good faith suspicion of employee’s stealing defeats FMLA claim

Employer’s good faith suspicion of employee’s stealing defeats FMLA claim
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Gwendolyn Donald worked for Arby's as an assistant manger. Shortly after being hired she suffered a series of medical problems causing intermittent periods of extreme pain. She was granted FMLA leave for related surgeries. While working the drive-through window, Donald’s cash register was over $4.00. Concerned that this might be evidence of employee theft, the company conducted an investigation, including video surveillance.

The surveillance suggested that Donald was ringing folks up at the full amount while recording the transaction in the register as discounted, and pocketing the difference. The suspicion could not be confirmed because the customers could have been handing coupons to Donald, which would explain the discrepancy. The company confronted Donald with its suspicions. When she refused to acknowledge in writing that she was stealing, she was fired.

Donald sued alleging that she was terminated in retaliation for taking FMLA leave in the past. She also claimed that her termination interferences with her right to return to work from intermittent FMLA leave in the future.

The Court initially noted that there were substantial questions regarding her FMLA retaliation/interference claims. Such questions would normally defeat the employer's motion for summary judgment. Because, however, the court found that the company established a legitimate, nondiscriminatory reason to end Donald's employment, and that Donald had failed to establish that the reason was pretextual.

The court agreed that being $4.00 over may be evidence of theft. The court also credited the company's investigation, which confirmed the possibility of theft. The company's handbook cited theft as a reason for immediate termination. A demonstrable risk of theft, the court found, is a legitimate reason for an employer to end that person's employment.

The court rejected the non-theft explanations offered by Donald. The fact that the discrepancy could be explained because the customers could have presented discount coupons failed to diminish the legitimacy of the company's concerns. The court explained:

There may be other explanations for the discrepancies beyond the, but Plaintiff has offered no reason to believe Plum, Barocko, and Ballance fabricated their concern to cover up their unlawful discrimination. Indeed, whether Plaintiff was actually stealing or not is largely irrelevant, the relevant question is whether the evidence of theft was a sufficient reason and the actual reason for Plaintiff's termination. Plaintiff's evidence does not demonstrate that Defendant made up its reason for the termination, the stated reason was not the real reason, or that the stated reason is insufficient to justify the decision. Nor is there any evidence that the inconvenience associated with her requests for FMLA lave played any role in the decision to end Donald's employment.

Mr. Bosland Comments: So long as an employer can establish that it had a good faith belief that it took an adverse action against an employee for legitimate, nondiscriminatory reasons, the employer will likely be successful in defeating an FMLA at the summary judgment phase. The employer does not have to prove that its suspicions were, in fact, correct. It need only prove that it held those suspicions in good faith, and acted on those suspicions when it decided to terminate the employee.

To show pretext, an employee will have to demonstrate that the employer did not have a good faith belief that the employee engaged in conduct that could get them terminated. This is not an easy burden. Simply offering innocent, alternative explanations won't do it. Stated differently, the fact that the employer may not be able to prove theft "beyond a reasonable doubt" is not the standard. To defeat an FMLA claim, all the employer need prove is that it had a reasonable, good faith suspicion of theft.

Evidence of innocent, alternative explanations might, however, be used as evidence of a particularly substandard employer investigation. Coupled with some adverse comments incident to the use of FMLA leave in the past, and a short period of time between protected activity and the adverse action, and the employee can start to build a credible argument to survive the employer's inevitable summary judgment motion.

The case Donald v. Sybra Inc., No. 09-12252-BC (E.D. Mich. Aug. 11, 2010).

The decisions is posted on the Internet on the “Leagle” law blog at:
http://www.leagle.com/unsecure/page.htm?shortname=infdco20100811b16

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