A Capehart Scatchard Blog

No FMLA Violation Where Walgreens Fired Employee With Honest Belief That He Violated Company Policy

By on September 26, 2011 in FMLA with 0 Comments

Michael Clark worked for Walgreens as the manager of its retail store in Dyersburg, Tennessee.  He took a medical leave of absence from December 8, 2006 to January 2, 2007  for a heart condition.  After his leave, Clark returned to the same position he held before his leave of absence.  Some time later Clark contacted his District Secretary and requested an additional leave of absence.

Store managers have the responsibility to make sure employees complete computer-based learning modules called People Plus Learning or PPLs.  These modules train employees how to operate the photo machine and basic management skills. 

The District Manager, Scott McKillop, received an email in February 2007 from an hourly assistant manager who complained that Clark had completed some of her PPLs and had requested that she do her PPLs on her own time rather than work time.  Several other assistant managers, when interviewed, leveled similar accusations against Clark in regard to PPLs.

On March 8, 2007, Clark was fired from Walgreens.  The company alleged that he falsified training records and learning modules and directed hourly paid assistant managers to complete learning modules off the clock. Clark countered that he was being retaliated against for taking FMLA protected leave and requesting additional leave. He also claimed that McKillop confronted him with the allegations regarding the PPLs and told him that he should resign due to his health.

Plaintiff’s claim rested primarily on indirect evidence of retaliation.  He could show that he engaged in protected activity in taking and requesting FMLA leave and he could show that an adverse employment action occurred within a close time to taking the leave.  However, the issue in this case was whether there was a causal connection between the use of FMLA and plaintiff’s termination.  The Sixth Circuit Court of Appeals held that “Walgreens harbored an ‘honest belief in its rationale when it reasonably relied on the particularized facts that were before it at the time the decision was made.’”

The court weighed the allegations of Clark that McKillop may have encouraged him to resign for health reasons.  However, it found, “Walgreens’ alleged silence in response to Clark’s requests for additional FMLA leave, and District Manager McKillop’s statements about Clark’s health, do not overwhelm the great weight of evidence concerning Clark’s malfeasance as to PPLs.” 

For these reasons the Sixth Circuit affirmed the district court in granting summary judgment to Walgreens in this case, which is reported at Clark v. Walgreen Co., 2011 U.S. App. LEXIS 10596 (6th Cir. 2011).


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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