Firing of Employee Under FMLA Leave Was Reasonable

January 12, 2006 ( - The US 1st Circuit Court of Appeals has granted summary judgment in favor of an employer who fired an employee discovered working out, renting videos, and shopping while he was out of work claiming he had debilitating migraines.

Considering the employee lied, the court ruled that no reasonable jury would find that Brian Colburn was discharged by his employer in retaliation for exercising his rights under the Family and Medical Leave Act (FMLA).

Colburn began experiencing migraine headaches which he said made him unable to perform work functions, including driving, since the headaches were accompanied by shooting pains, dizziness, blurry vision, or nausea.   In late 2001 he began to take sick leave due to the migraines.   According to the court, Colburn missed 25 days of work between October 2001 and January 2002.

Colburn had requested short-term disability benefits, and was asked on three different occasions for proof of his medical claims.   He never provided the proof, nor did he tell the company that he had signed a release of medical information form at his doctor’s office allowing them to get information on their own.

After his failure to provide documentation, and after he was found to not be at home several times when a human resources officer of the company called him when he was supposed to be suffering a migraine, the company hired a private investigator to follow Colburn.

On two separate days when Colburn had called in claiming he had a migraine the private investigator witnessed Colburn going to his gym, renting videos, and shopping.   Upon seeing the tape, the company fired Colburn.

Colburn filed a lawsuit for violation of his FMLA rights and retaliation.   The district court dismissed his claims partly because Colburn testified that he could not have returned to work until long after his FMLA leave expired anyway.   Colburn appealed the dismissal.

The appellate court upheld the dismissal, but for a different reason than the lower court.   His employer’s claim that Colburn was fired for falsifying his reasons for being out of work were reasonable, and there was no evidence the firing was in retaliation for his taking FMLA leave.

The opinion in Brian Colburn v. Parker Hannifin/Nichols Portland Division is  here .