The U.S. Court of Appeals for the Seventh Circuit recently upheld the dismissal of a lawsuit claiming an employer violated the FMLA by suspending its employee over his use of intermittent leave. The case involved a married couple who worked for the same employer. Both were certified and approved for intermittent FMLA leave, but for different serious health conditions. His medical condition was anxiety disorder, hers, irritable bowel syndrome. Though different, both conditions involved the need for unplanned absences. The employer became suspicious when the couples’ use of leave began to exceed the expectations certified by their healthcare providers, and a pattern of overlap became apparent in when the two used their supposedly unplanned, intermittent leave. The employer assembled evidence that over the past year, the couple had used FMLA on 21 common days and on 27 more occasions where their partial day absences overlapped. Deeming this sufficient to confirm its suspicions the two were often falsifying their need for leave, it suspended both for 30 days without pay. Curiously, only the husband sued. He claimed the employer could not lawfully discipline him based on mere suspicion he was abusing FMLA leave, especially when it could not prove a specific date where his leave was not legitimately used for his approved serious health condition. The court disagreed. It held that, as the plaintiff, the employee bore the burden of proof that the employer disciplined him for taking FMLA, or to otherwise interfere with that protected right. In this case the court noted the plaintiff lacked any evidence the employer disciplined him for any reason other than its “honest suspicion” he was dishonest about his need for and use of FMLA leave.
