• Misconduct Discovered During FMLA Leave Justified Termination
  • April 8, 2009 | Author: Scott M. Gilbert
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • A service center manager for a trucking company developed a serious health condition that required his hospitalization. The manager sought and received leave under the Family and Medical Leave Act (FMLA). The company hired several replacement employees in order to manage the trucking terminal during the manager’s absence. In the course of their duties, the replacement employees discovered that some freight was not being delivered, and that damaged freight was being hidden. After being informed of this news, company executives performed an investigation and concluded that the manager had deliberately attempted to disguise late and damaged deliveries. The decision was then made to terminate the manager, and he was informed of as much on his first day back from FMLA leave. The manager sued the company, alleging that it had retaliated against him for taking FMLA leave. In support of his claim, the manager pointed to the fact that he had an exemplary work record prior to his leave and that he was terminated on his first day back from leave. The United States Court of Appeals for the Seventh Circuit viewed these events differently, recognizing that an employer is not prohibited from responding to employee misconduct, even if that misconduct was only discovered because the employee was on leave. Ultimately, the manager’s claim failed because he could present no evidence that the company’s reason for terminating him was untrue. Employers should be aware that employees cannot insulate themselves from discipline by taking leave, but the basis for any adverse action taken against an employee returning from leave must be well documented.

    Cracco v. Vitran Express, Inc., No. 07-3827 (7th Cir., Mar. 17, 2009)