Telling A Co-Worker That Your FMLA Leave Is A Scam Is A Bad Idea

By harley erbe

Financial Stress

Manager Keith Curtis wasn't meeting his employer's expectations. There was a good possibility that he'd be demoted or fired if he didn't shape up. So Curtis decided to do everything he could to retain his managerial position -- He'd fraudulently seek leave under the Family and Medical Leave Act with the theory that his employer couldn't demote him while he was on FMLA leave. That was the situation that confronted the court in the employment law case of Curtis v. Costco.

Keith Curtis was an optical manager for a Costco store. He was on a performance improvement plan. An employee working under Curtis in the optical department informed Costco managerial staff that she was concerned that Curtis was going to "scam" the company. She said that Curtis told her he intended to take a medical leave to secure his managerial rate of pay and position in the event of demotion. Costco determined that, by this comment, Curtis had violated its Manager Standard of Ethics.  Curtis was consequently demoted from optical manager to cashier. Two days later, Curtis requested and received FMLA leave. 

Curtis later sued for, among other things, FMLA retaliation concerning Costco's handling of his FMLA situation. Curtis argued that Costco violated the FMLA when it demoted him in retaliation for "engag[ing] in FMLA-protected activity." Curtis further maintained that the "FMLA-protected activity" was his comment to his subordinate that he was contemplating medical leave.

The court first considered whether Curtis's comment to his subordinate constituted sufficient notice under the FMLA and whether the comment qualified as protected activity. The FMLA requires employees to give notice at least 30 days in advance when the need for the leave is foreseeable. In the event 30-days notice cannot be given due to extenuating circumstances, notice must be given as soon as practicable. If an employee fails to give proper notice, an employer may deny the leave. The burden of giving proper notice is on the employee. The employee must give the employer enough information to believe that the employee is entitled to FMLA leave. The burden then shifts to the employer to request additional information as needed.

The court decided that Curtis's comment to his subordinate did not constitute sufficient FMLA notice to Costco. Even if that comment could be considered sufficient FMLA notice, the court was concerned that the subordinate stated that Curtis wanted to "scam" Costco. Activity that might normally receive FMLA protection loses that protection when it is fraudulent. The court ruled that, regardless of whether Curtis's comment could be construed as providing sufficient notice for FMLA purposes, this particular comment fell outside the scope of protected activity, given the fact that Costco acted on information that Curtis's subordinate provided to management — namely, her concern that Curtis intended to "scam" the company by taking a fraudulent medical leave.

Curtis's FMLA retaliation claim failed for the additional reason that, even assuming that his statement to his subordinate constituted protected activity under the FMLA, he couldn't prove that his demotion was related to that comment. There must be a connection between the FMLA protected activity and the adverse employment action. Costco submitted evidence that, before Curtis's demotion, he faced several performance issues, including customer complaints, violation of Costco's dress code, and failing to perform managerial duties. He also made the "scam" comment to his subordinate. In sum, the evidence was overwhelming that Curtis's demotion occurred because of performance issues and misconduct, not because of his FMLA comment to his subordinate. 

Please feel free to contact us if you need the assistance of a Des Moines FMLA lawyer.

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