A recent ruling reinforces that “how” an employer does what it does often is as important as what it does.  The case appeared relatively straightforward.  An employee missed a work shift and claimed intermittent FMLA leave.  One manager, who had been skeptical about some past intermittent leave use, saw the employee at a birthday party on the same day of the missed work shift.  The employer investigated.  There was evidence that the employee was at the party at the same time as some of the hours of her missed work shift.  The employee claimed she attended the party only after her shift would have ended, and that she was feeling better after resting for most of the day.

The employer terminated the employee, explaining it had an honestly-held belief that the employee had been at the party during her shift and was lying about it.  Rather than grant summary judgment to the employer, the Court ruled a jury trial was necessary.  Why?

Here are the reasons the Court did not defer to the employer’s claimed honestly-held belief under the “honest belief” rule:

• The employer began preparing the termination paperwork before the employee was offered the opportunity to explain the situation.
• The employer explained that the termination decision and the paperwork were based on an investigative report, but that report said “further investigation” was necessary to determine if the employee was being dishonest.
• The Court also noted the employer’s cynicism about the employee’s past use of FMLA leave, showing some animus toward the employee taking FMLA leave in the past.

Lessons Learned

• A thorough and inherently consistent investigation is required. 

• The employer claimed it gave the employee an opportunity to explain herself but yet prepared the termination paperwork before the investigative meeting with the employee;
• The employer’s own paperwork showed that further investigation was necessary to determine if the employee was being truthful but no such further investigation was done before the termination.

• An employer may have ample reason to be cynical about an employee’s use of leave in the past.  However, allowing that past cynicism to taint decision-making in a current situation can create problems.
• People generally find cynicism an unattractive trait.  Thinking the worst about someone without knowing the full story looks bad.  For this reason, jurors (and here the Court too) often find an employer’s cynical attitude about someone “using the system” distasteful, absent very strong evidence supporting the conclusion.