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'Honest belief' that worker abused FMLA leave shields employer from retaliation charge


CINCINNATI—A company's “honest belief” that a worker had abused his disability leave shields it from being accused of retaliation under the Family and Medical Leave Act for his subsequent termination, says an appellate court.

According to Tuesday's ruling by the 6th U.S. Circuit Court of Appeals in Cincinnati in Tom Seeger vs. Cincinnati Bell Telephone Co. L.L.C., Mr. Seeger took FMLA and concurrent paid leave in September 2007 to treat and recover from a herniated disc in his back.

Later that month, CBT's medical department manager offered to place him on temporary restricted duty, but she was informed by his doctor's office that he was unable to perform any restricted work.

Four days later, Mr. Seeger was seen by several co-workers attending the Oktoberfest in downtown Cincinnati. He “admittedly walked a total of 10 blocks to and from the festival and consumed one or two beers,” according to the appellate ruling.

Mr. Seeger subsequently was terminated on the grounds of disability fraud, a violation of CBT's code of conduct. Mr. Seeger filed suit. He claimed he was in pain the whole time he attended the Oktoberfest, but got some relief when he took short walks and, furthermore, that his doctor had recommended the walks. A lower court ruled in the company's favor, holding the company's termination was not retaliatory, and granted the firm summary judgment dismissing the case.

The appellate court agreed in its 2-1 ruling.


“CBT has articulated a legitimate, nondiscriminatory reason for discharging Seeger,” says the ruling. “Fraud and dishonesty constitute lawful, nonretaliatory bases for termination.” Mr. Seeger's “ability to walk unaided for 10 blocks and remain at the crowded festival for 90 minutes understandably raised a red flag for CBT, giving it reason to suspect that Seeger was misrepresenting his medical condition in an attempt to defraud CBT's paid-leave policy.”

The appellate court said, “All in all, the record reflects that CBT made a reasonably informed and considered decision before terminating Seeger. That Seeger or the court might have come to a different conclusion if they had conducted the investigation is immaterial. Seeger has not refuted CBT's honest belief that the inconsistent factors before it were the result of fraud on his part, and his claim that his termination as pretext for discrimination necessarily fails,” said the court in upholding the lower court's ruling.