Fired Employee Seeks Rehearing on FMLA Spy Ruling

A former employee of a car parts manufacturer has asked the 7th Circuit to reconsider its finding that her firing after a private detective reported that she worked a second job during her medical leave did not violate her Family and Medical Leave Act rights.

Plaintiff Diana Vail says Raybestos Products Co. interfered with her rights under the Family and Medical Leave Act, which entitles her to reinstatement to her previous position at the conclusion of her leave.

She is seeking a rehearing of the 7th Circuit U.S. Court of Appeals' decision finding that Raybestos did not interfere with her leave rights because it had an "honest suspicion" that she was abusing her leave.

"Though the use of an off-duty police officer to follow an employee on leave may not be preferred employer behavior, employers have certainly gone farther than Raybestos," the three-judge panel said, noting that videotaping an employee on leave was not uncommon.

The court also rejected Vail's claim that Raybestos violated the collective bargaining agreement, citing her failure to exhaust her union grievance procedure before filing suit.

According to the opinion, Vail suffers from migraine headaches, a condition that required her to take periodic leave under the FMLA during summer and fall 2005. Her supervisors were aware of her condition and had approved intermittent medical leave the previous year.

During the period in question Vail received more than 33 days of approved leave, with much of that time taken during the summer, the opinion says.

Knowing that Vail's husband had a lawn care business, Raybestos decided to investigate whether she was helping him during her medical leaves.

The company hired a police officer to monitor Vail's activities while he was off-duty. The officer reported that on a day when Vail had requested FMLA leave, he observed her mowing the lawn for one of her husband's clients, the opinion says.

The same day, Vail again called Raybestos to say she would be taking medical leave for her nightshift because of the onset of a migraine. The company concluded that she was abusing her leave and fired her when she next reported to work.

Vail did not file a grievance over her termination but instead filed suit in the U.S. District Court for the Southern District of Indiana. She alleged that Raybestos violated the collective bargaining agreement and the FMLA by firing her.

Raybestos moved for summary judgment, and the District Court granted the motion.

Vail appealed to the 7th Circuit, which affirmed.

The appeals court panel first determined that the plaintiff's collective-bargaining-agreement claim was not properly before the court because she failed to use the prescribed grievance procedure before going to court.

Next, the court said Raybestos met its burden of showing that Vail had not taken leave "for its intended purpose."

An employer does not violate the FMLA if it refuses to reinstate an employee based on an "honest suspicion" that she was abusing her leave, the court explained.

The information supplied by the private investigator was sufficient to give Raybestos an "honest suspicion" that Vail was not using her leave to treat her migraines, the court said.

Thus, Raybestos did not violate Vail's rights under the FMLA, the court concluded.

Vail now wants the court to revisit that decision.

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She is represented by Ronald Weldy of Indianapolis.Counsel for Raybestos is Matthew Effland of Ogletree Deakins Nash Smoak & Stewart in Indianapolis.