No retaliation claim over fake FMLA leave

The Court of Appeals continues to hear cases that raise new questions under the Family and Medical Leave Act, a law enacted in 1993 that allows certain employees to take time off for personal and family medical reasons without fear of retaliation. This case is dismissed from the outset.

The case is Alexander v. Board of Education, a summary order decided on May 6. Under FMLA, employers cannot retaliate if you take FMLA leave. In this case, plaintiff claims she was retaliated against, but the Court of Appeals (Hall, Calabresi and Walker) finds on the face of the Complaint or in related documents (this appeal arises from a Rule 12 motion) that she had taken FMLA leave for fraudulent reasons. Although the Second Circuit has not addressed this issue before, other Circuits have, including the Sixth and Seventh, which have said that it's not illegal retaliation of management shows you the door over your dishonest FMLA leave.

The Court goes on to say the Complaint does not plausibly allege retaliation because "the length of time between Alexander's exercise of her FMLA leave and her discharge" is too attenuated. In addition, while plaintiff says management made hostile comments about her FMLA leave, it was not until they discovered it was fraudulent that they actually terminated her employment. So here's a nuance affecting the Rule 12/Iqbal inquiry: "Alexander's attenuated allegations were contradicted both by more specific allegations in the complaint and documents incorporated by reference."

The Court of Appeals follows the lead of the other circuits in rejecting plaintiff's claim, holding that not all FMLA leaves insulate you from termination. A dishonest FMLA leave is a terminable offense. To that end, this case is not far afield from other areas of employment law. Good faith activities are protected under Title VII and other labor laws. Bad faith activities are not.