by Gail Cohen, Esq. - Assistant General Counsel Employment and Litigation
April 02, 2019
Marion Egler was employed as a Reservations Agent for American Airlines. From 2006 through 2013, she applied and was approved for, FMLA on thirty-four separate occasions. In November and December 2014, Egler submitted four certification forms for continuous blocks of time that appeared to have been “whited out and/or written over.” The FMLA regulations allow an employer to authenticate a certification form, by providing a copy to the provider and asking for verification that the information supplied was completed or authorized by the provider who signed it. As a result of the apparent alteration of those forms, American sought authentication of the certifications and was advised by the doctor that it was not completed or signed by that provider or anyone else in his office.
Egler was confronted with these discrepancies and denied knowing anything about the forms being altered. Egler wrote a statement (she later claimed under duress) in which she indicated she understood her leave was being questioned and that while she understood the forms appeared to have been altered, she indicated she’d be following up with her doctor’s office because “she [couldn’t] speculate.” She was placed on a paid suspension and invited to submit any additional information to clarify the discrepancies. When she did not do so, American fired her for altering FMLA forms, a violation of the company’s Code of Conduct.
Egler appealed her termination using the company’s process to do so, claiming she was “not guilty,” and had not been given the resources and time to defend herself. She submitted two additional letters purporting to come from the provider’s office. He reiterated that neither he nor anyone else in his office completed this documentation. As a result, the company upheld the decision to terminate her employment on appeal. Egler sued American alleging, among other things, FMLA interference and retaliation.
The court quickly disposed of her FMLA interference claim because American granted her all the leave she had requested and moved on to the retaliation claim. In evaluating that claim, the court elaborated that it is Egler’s burden to undermine American’s “honest belief,” meaning, presenting evidence that American did not honestly believe she had broken its conduct rules by submitting altered FMLA certifications. While Egler herself “emphatically denied [she] alter[ed] the forms,” and challenged whether American had shown that she had done so, that is not the standard. It is not the role of the court to decide that the reason given for the employer’s decision was “wise, fair or even correct;” it is Egler’s burden, as the plaintiff, to demonstrate that the reason for American’s decision was false, dishonest or more likely the result of retaliation. Her own self-assessment was not enough.
American went to her doctor, just as the FMLA allowed it to do, and had substantiated that the forms were not authentic. Armed with this information, and a good faith investigation that allowed Egler to be heard, American acted on its honest belief she violated its rules and prevailed on summary judgment.
You can read more here: Egler v American Airlines, E.D. North Carolina (February 21, 2019)
PINGS FOR EMPLOYERS – What American Did Right
- They had a written policy addressing falsification or fraud in the FMLA process
- They allowed employee to take the leave, then reinstated her and dealt with
the fraud issue separately. - They didn’t deal with the fraud issue until their investigation was complete. In
connection with their investigation, they used the tools the FMLA affords employers
like seeking authentication of medical information and/or certification forms that
appear to be altered.
If you just can’t get enough of FMLA certifications (and let’s face it, at least it’s not Paid Family Leave!) you might want to check out the 2019 DMEC FMLA/ADA Employer Compliance Conference, May 6-9, in Portland, OR. On May 8 our very own Gail Cohen and fellow legal eagle and blogger extraordinaire Jeff Nowak will present Medical Certifications: How to Maximize one of the FMLA’s Most Important Tools. Don’t miss it!
Matrix can help! At Matrix Absence Management, we administer FMLA, state leaves, the ADA, and related company policies for employers every day, day in and day out. If you would like more information contact us at [email protected] or through your Account Manager.