Phony Doctor’s Note in Connection With FMLA Could Justify Discharge

Issue: Your employee provides you with an obviously forged doctor’s note in connection with his Family and Medical Leave Act (FMLA) request. You decide to terminate the employee based on a dishonest act—his submitting the note in order to gain additional days of sick pay. The employee sues in federal court alleging unlawful retaliation for requesting FMLA leave. Does the employee have a case?

Answer: Probably not. A federal district court in Pennsylvania ruled that the employee in this instance could not proceed with his claim since he failed to offer any proof that his employer’s reason for terminating him was a pretext to retaliate against him for his FMLA leave or for a prior disciplinary grievance. The employer was able to have the case summarily dismissed.

Good faith, nondiscriminatory reason for termination.
Although the employee established a prima facie case of retaliation due only to the sheer proximity in time between his FMLA leave request and his termination, his employer could nevertheless demonstrate that its reason for terminating him was legitimate and nondiscriminatory. Simply, it had a good faith belief that the employee falsified the doctor’s note in order to obtain sick pay.

Be sure you have a legitimate and nondiscriminatory reason for taking any adverse employment action. Remember, though, that it will be the employee’s burden to demonstrate that your reason was merely a pretext to hide an improper motive. Therefore, you should always document your decisions to demonstrate a good-faith belief that your actions were warranted by the facts.

Cite: Baltuskonis v. US Airways, Inc. (EDPa 1999) 139 LC 33,944.

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