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Employer Properly Fired Employee For FMLA Abuse

Erik Tillman worked as a Communications Specialist for Ohio Bell Telephone. His work required him to fill customer orders for phone and internet services and do maintenance work, including lifting up to 100 pounds and climbing ladders. He was frequently required to work nights and weekends due to his low seniority within the union. He took FMLA leave several times for his back condition and for depression.

In 2008 Tillman was placed on short-term disability leave for two and a half weeks due to nasal adhesions, which was counted toward his FMLA time. He sought intermittent FMLA leave in May 2008 for his back condition. He also requested several days of FMLA leave every month between May 2008 and April 2009.

A pattern began to be noticed at the company regarding Tillman’s FMLA use. He would notify his supervisor often in advance when he intended to use FMLA leave. He told his supervisor on June 27, 2008 that he would be taking FMLA leave on July 12, 19, and 26, which were all Saturdays in July. He said at one point, “If I end up on evenings due to seniority, I’m letting you know in advance I will be using an FMLA day on December 13th. I’m not sure how all this is going to work out. Am I considered low man on a borrowed basis?”

Eventually the company approved an investigation of Tillman’s use of FMLA when he requested leave during the four days adjacent to the New Year’s holiday as well as changes in his work tours. It hired a private investigator to conduct surveillance of plaintiff during his FMLA leaves. On March 15, 2009, plaintiff was observed driving his family around and running several personal errands, including visits to a sporting goods store, a department store, and a coffee shop for about two hours. He was also seen working in his garage, bending down and lifting pieces of wood trim and then transporting them from the garage to the house several times.

The company next presented the video surveillance to a physician, who wrote that plaintiff’s activity level was inconsistent with the “physical behaviors typical of someone with incapacitating back pain.” In fact, the doctor said that plaintiff was not incapacitated from performing his work duties because he could bend at the waist and stand frequently without any perceptible problem.

When confronted with the surveillance, plaintiff indicated that he usually did his exercises on the weekend while on FMLA leave because he was too busy to do his exercises on weekdays. He also speculated that the surveillance caught him on a good day when he might have recently had a cortisone shot. He further said that he may have been taking Oxycodone or Percocet, but he said he could not have worked while under the influence of these medications. Yet the surveillance showed him driving his family around.

Based on this investigation, plaintiff’s employment was terminated. Tillman sued under the FMLA and contended that the company retaliated against him for his FMLA use and interfered with his FMLA use. The court said it would not substitute its own judgment for that of the employer. It “does not require that the decisional process used by the employer be optimal or that it left no stone unturned. Rather, the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.” The court said that the doctor’s report and the surveillance footage provided sufficient support for terminating plaintiff’s employment.

The case is useful for employers who have investigated employee abuse of FMLA. It is noteworthy that the employer sent the surveillance footage to a physician for analysis before it made its employment decision. The court in this case commented, “Dr. Conbear’s findings that Plaintiff’s fluid movements and vigorous activities belied his assertion that he required FMLA leave due to incapacitating back pain, were based on specific evidence and set forth a reasonable medical interpretation of that evidence.”

As for plaintiff’s responses to the surveillance, the court said, “Defendant was entitled to disbelieve Plaintiff’s assertion that he was under the influence of Oxycodone or Percocet because he did not disclose any indication of incapacitating side effects resulting from medication, or that he had been prescribed such medication, on his FMLA certification forms. Indeed, Plaintiff’s treating physician testified that she had not prescribed such medication to him.”

This case can be found at Tillman v. Ohio Bell Telephone, 2011 U.S. Dist. LEXIS 74329 (W.D. Ohio 2011).

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