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Photographs on Facebook Prove to be a Valuable Tool in an Employer’s Termination of an FMLA Abuser
Carol Linberry was employed by the Detroit Medical Center as a full-time registered nurse. Linberry claimed that she woke up with excruciating pain in her lower back and leg the day after moving stretchers at work. Thereafter, Linberry requested and received FMLA leave from January 27, 2012 through April 2012. During her leave, Linberry took a trip to Mexico, which was approved by her treating physician. Linberry’s treating physician provided an affidavit which stated that the trip was not as physically demanding as Linberry’s work duties and that the trip would not complicate her recovery.Linberry’s co-workers subsequently saw Facebook photographs of her riding a motorboat, lying on her side on a bed holding up two bottles of beer in one hand, and holding her infant grandchild with one hand. Her co-workers also saw Facebook discussions regarding Linberry’s trips to Home Depot. Based on Linberry’s Facebook postings, her co-workers complained to management that she was abusing her FMLA leave.
In between her trip to Mexico, watching her grandchildren, and her trips to Home Depot, Linberry found the time to email her supervisor, complaining that she had not received a “get well” card from the staff. Linberry’s supervisor responded via email that: “the staff were waiting until you came back from your vacation in Mexico to determine the next step. Since you were well enough to travel on a 4+ hour flight, wait in customs lines, bus transport, etc, we were assuming that you would be well enough to come back to work.”
Linberry emailed her supervisor and stated that she had used a wheelchair while in the airports and while going through customs, as she was unable to stand for more than 10 minutes. Linberry stated that she had been sitting for the majority of the time. Additionally, Linberry stated that she would not have gone to Mexico if wheelchairs were not made available to her at both airports.
When Linberry was cleared to return to work, her employer scheduled her for a meeting with management and human resources. At the meeting, Linberry continued to maintain that she utilized a wheelchair while on her Mexico trip. When she was told that there are cameras in airports and shown her Facebook photographs, she recanted her assertion that she had used wheelchairs. Walking through the airports and customs was contrary to her restrictions, as was holding her grandchildren, who weighed more than 15 pounds.
A memorandum was issued, which stated that Linberry would be terminated, prior to Linberry’s admission that she had lied regarding her use of wheelchairs. Linberry was subsequently terminated based upon the employer’s policy regarding dishonesty and “fraudulent continuation of an FMLA Claim.”
Linberry filed suit against her employer for FMLA interference and retaliation. Linberry argued that the decision to terminate was made prior to her admission and therefore the reason provided for termination was pre-textual. The court found that although the memorandum which stated that Linberry would be terminated was issued prior to Linberry’s admission, the individuals involved were not decision makers and regardless had an honest belief that Linberry was being dishonest based on the evidence before them at that time. The court granted summary judgment in favor of the employer.
This case illustrates several points when dealing with an FMLA abuser and conducting an investigation. First, although Facebook was a valuable tool in this case, it does not mean that you should spy on your employee through his or her Facebook page or through any other social media outlets. Connecting with employees through social media can lead to an employer discovering characteristics that an employer may otherwise not know (i.e., an employee’s disabilities, genetic issues, national origin, or religious beliefs).
That being said, employers should not be afraid to make use of the information obtained through social media to enforce policies and curtail leave abuse. In this case, the employer obtained the information when other employees complained and provided evidence. Thus, if management is presented with information regarding leave abuse, it should investigate.
Also, employers should specifically train management as to the use of emails or memorandums regarding the termination of employees, especially when an investigation is ongoing. The memorandum sent in this case could have “sunk the ship” given that the ultimate reason for Linberry’s termination had not yet occurred. Make sure to document the occurrences that may be infractions of policies, or which may lead to termination and/or discipline; however, do not document any biases or state that a termination will occur until the investigation is complete and the decision has been made.
Individuals on protected leave may be disciplined or even terminated, but your actions must be consistent with your policies. You must follow your progressive discipline policy if one is in place.
Of course, you should contact your employment counsel in any situation where you are considering the termination of an individual on protected leave. Employment counsel will be able to direct and help you navigate through the process.
Should you have any questions or concerns regarding FMLA abuse or disciplining employees on protected leave, please do not hesitate to contact Ryan Neumeyer or Lynn Schonberg at 216-447-1551.