Human Resources

Employee who attended Beyonce concert while on FMLA has to face the music

MJ was a marketing manager for BNSF, a railway company, and had been so employed since 2002. She was having some difficulty keeping up with her workload, and was put on a performance improvement plan on April 25, 2016. She did not agree with being put on such plan.

On May 2, 2016, MJ reportedly had a “breakdown” and went to see a physician. She sent an email to BNSF stating that she was “not well to return back to work” and would be forwarding short term disability documentation. She had no return to work date.

On May 9, 2016, MJ attended a Beyonce concert in BNSF’s luxury box at AT&T Stadium. A BNSF human resources representative wanted to speak with MJ to discuss why she thought it was appropriate to attend the concert while off work. She left MJ a voicemail on May 13 to arrange a meeting. MJ responded by email on May 16, stating that she had not been released to meet, but that as soon as she was, she would be happy to meet. The HR representative responded in an email saying that she needed to speak with MJ by the end of the day, and that she could be terminated for failing to communicate. MJ did not respond. She was terminated by a letter, dated May 18, with the termination reasons being: poor work performance; attending a concert while being off work; and refusal to communicate to explain her attendance at the concert.

MJ filed a lawsuit alleging that the termination interfered with her FMLA rights, and was in retaliation for exercising her FMLA rights.

The court dismissed the suit, finding that her FMLA rights were not violated because BNSF honestly suspected that MJ was abusing FMLA; attempted to investigate that; and MJ refused to cooperate. The court likewise dismissed the retaliation claim, finding that BNSF had legitimate non-discriminatory reasons for the termination.

The employer in this case was able to achieve a favorable result in court. However, FMLA situations often involve complicated facts, and employers should be extremely cautious when taking adverse actions against an employee on FMLA. Our experts assist our clients in these exposure laden predicaments.