Keith was a manager for Costco. By all accounts, he wasn’t a very good employee.  The store disciplined Keith over customer complaints, dress code violations, and failing to perform his job duties.  Consequently, he was placed on a performance improvement plan. Shortly after receiving the PIP, Keith told a subordinate that he planned to take FMLA leave “to secure his managerial rate of pay and position in the event of demotion.” This employee then reported the conversation to the store’s managerial staff because the employee was concerned that Keith was going to “scam” the company. The store promptly demoted Keith to a cashier position as a result of the report.

Two days after the demotion, Keith requested and was provided FMLA leave. During his leave, he requested a transfer to a different store, but his current store refused because he remained on FMLA leave. After his doctor released him to work, he was transferred to a position at a different store.

Keith immediately filed an FMLA and ADA lawsuit, claiming that the Company interfered with his FMLA leave when it demoted him and refused to allow him return to work when he requested.  He also added an FMLA retaliation claim.

Insights for Employers

The problem with Keith’s lawsuit?  Let me count the ways:

1.  The Company demoted him before he took FMLA leave.  Additionally, he did not provide proper notice of the need for FMLA leave when he told his subordinate that he was seeking FMLA leave. Because Keith did not follow the Company’s very specific policy for requesting FMLA leave, his request was not protected under the FMLA.

2.  Even if notice to the subordinate was enough to trigger the FMLA, Keith’s conduct still was not protected because the Company honestly believed that Keith was trying to “scam” the store, as reported by the other employee.  The Court put it this way:

Keith failed to produce any evidence that [his manager], or any other Costco manager, did not rely on the information gained from [Keith’s subordinate] in deciding to demote him. Keith was on a 90-day PIP at the time of his comment to the subordinate.  Costco honestly believed Keith violated its Manager Standard of Ethics by contemplating a fraudulent medical leave, and Keith presented no evidence to dispute this fact.  [My emphasis]

Based on the information it received from the subordinate, Costco surely had the right to suspect that Keith might be abusing leave. Me thinks, however, that Costco dodged a bullet when it did not conduct an investigation into Keith’s alleged comment.  As I have referenced in a previous post, courts typically will support an employer’s “honest belief” defense only after they have conducted a complete and exhaustive investigation into the facts.  The court reviewing this case didn’t fault Costco for failing to conduct an investigation, but the risk is that a different court easily could have, which would have required the Company to head to trial on Keith’s FMLA claims when they otherwise never should have seen the light of day.

3.  What about Keith’s request to transfer to another store while he was out on FMLA leave?  The Court’s response to this issue is helpful in practice for employers: Simply put, employers “are under no obligation to restore an employee to his or her position if the employee is unable to perform the essential functions of the job.”  Here, Keith remained on FMLA leave, so he clearly could not perform the functions of the job — whether at his current store or at another store.  As a result, Costco was well advised to keep Keith on leave and deal with the transfer request when he was able to perform the essential functions of his demoted cashier position.

The Curtis v. Costco court decision can be found here (pdf).

Jeff Nowak is a Partner at the law firm of Franczek Radelet and serves as co-chair of the firm’s Labor and Employment Practice and was named by Law Bulletin Publishing as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012.  Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits.  Jeff is the author of the firm’s highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2014) and was also voted the No. 2 Labor and Employment blog by LexisNexis.

The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.


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