A Capehart Scatchard Blog

Employee Who Was Going to College While on FMLA Leave Was Properly Terminated

By on September 14, 2012 in FMLA with 0 Comments

Plaintiff worked as a supervisor for Comcast’s Retention Department.  She worked Monday through Friday. In July 2010 she requested time off on Tuesdays and Thursdays to take care of her child, who suffered from asthma.  The request was initially denied, so plaintiff used flex time or vacation time on Tuesdays and Thursdays until she ran out of that bank of time in September.

On September 28, 2010, plaintiff met with Comcast’s Senior Director of Human Resources to request FMLA leave to care for her daughter.  She also said that she was attending classes on Tuesdays and Thursdays, but she did not specifically state that she would be using FMLA leave to attend those classes.

The FMLA request was approved for leave two times per week to care for her child’s serious health condition for the period between September 1, 2010 and August 31, 2011.

On November 8, 2010, plaintiff’s supervisor sent an internal email stating that coworkers were “getting really upset at the fact that they know of plaintiff’s pattern of calling off on Tuesday and Thursday.” The Human Resources Department decided to investigate plaintiff’s use of FMLA leave and retained an outside surveillance company to monitor plaintiff’s internet activity and conduct surveillance on her home.

Comcast held a fact finding meeting with plaintiff on January 25, 2011.  Plaintiff stated that she sometimes went to the library to study or ran personal errands on FMLA leave days.  She also admitted that she would stay home to rest if she had been up the night before caring for her daughter.  The company terminated plaintiff’s employment.  Later on during discovery it found out that plaintiff had attended classes at one of two colleges –Roosevelt University or Saint Xavier University during work hours while on FMLA leave.

Plaintiff sued and alleged that the company interfered with her use of FMLA leave.  She argued that even if she did conduct personal business during FMLA leave, she also spent some part of every FMLA leave day caring for her daughter.  The Court held that an employer is under no obligation to reinstate an employee who misuses disability leave.  The Court further noted that “[p]laintiff’s FMLA leave allowed her to use it only for caring for her daughter, not for recovering from caring for her daughter, or for conducting personal business after caring for her daughter.”

The Court added, “[A]ccepting plaintiff’s position regarding partial days would lead to an absurd result; if she had spent one minute of the day caring for her daughter, according to her theory of the FMLA, she was entitled to take a full day off.” While plaintiff may have fully intended to use FMLA leave to care for her daughter, the facts were that she actually did many other personal things unrelated to her leave.

This case provides some helpful news for employers in dealing with the FMLA.  As employers know only too well, the FMLA can be finessed by employees, and it can be very hard to make sure that the true purpose of the FMLA leave is actually realized.  Few employers would go to the lengths of hiring an outside investigator, but in this case the aggressive approach by Comcast paid dividends.  This case can be found at Sledge v. Comcast ABB Management, LLC, 2012 U.S. Dist. LEXIS 85832 (E.D.Ill. 2012).


About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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