Another Facebook Fail: Posting Vacation Pics During FMLA Leave

By Kathleen Jennings (kjj@wimlaw.com)

When will employees learn that the things they post on social media almost always get back to their employer? An example of an employee who learned this lesson the hard way comes to us from the 11th Circuit Court of Appeals. In Jones v. Gulf Coast Health Care of Del., LLC, No. 16-11142 (11th Cir., 2017), Rodney Jones served as Activities Director for Accentia, a long-term-care nursing facility. He requested and received FMLA leave so that he could undergo rotator cuff surgery. Jones was granted another 30 days of non-FMLA medical leave in order to complete his physical therapy. While on the 30 days of additional leave, Jones twice visited the Busch Gardens theme park in Tampa Bay, Florida and went on a trip to St. Martin. Jones spent his time at Busch Gardens walking around and taking pictures of the park’s Christmas decorations. He sent these pictures to his staff via text message, hoping to give them ideas for decorating Accentia’s facilities. Jones also visited his family in St. Martin for three days. He posted photos from these trips on his Facebook page, including pictures of himself on the beach, posing by a boat wreck, and in the ocean. Let’s face it, this guy was having way too much fun on FMLA leave, and he seemed to be rubbing everyone’s face in it. This was not going to end well.

Jones eventually returned to work as planned, and he presented his supervisor, Daniels, with a fitness-for-duty certification confirming that Jones could immediately resume his job as Activities Director. Daniels responded by showing Jones the photos from Jones’s Facebook page, which depicted the trips that he had taken while on medical leave. Oops.

To make matters worse, when Jones asked Daniels how he had obtained the photos, Daniels responded that “you can thank your wonderful staff, they just ratted you out,” but also remarked that “maybe if you’re going to have a Facebook account, you shouldn’t have it on public.” Daniels then informed Jones that “corporate” believed, based on these Facebook posts, that Jones had been well enough to return to work at an earlier point. Jones was subsequently suspended so that Daniels could investigate his conduct during medical leave. Although Jones was given an opportunity to respond to these charges in a letter, he failed to do so. Several days later, Jones’s employment was terminated.

Jones filed suit, alleging that, in suspending and later terminating him, Accentia interfered with the exercise of his FMLA rights and retaliated against him for asserting those rights. The District Court granted summary judgment in favor of the employer on both claims. The 11th Circuit affirmed the decision to grant summary judgment on the interference claim, but reversed the decision on the retaliation claim, finding that there were disputed issues of fact because the employer offered inconsistent reasons for Jones’ discharge.

The employer prevailed on the FMLA interference claim because Jones likely waived his FMLA right to reinstatement by taking an additional 30 days of medical leave, because he failed to submit a fitness-for-duty certification by the end of his FMLA leave, and because the record was devoid of proof challenging Accentia’s contention that its fitness-for-duty certification policy was implemented in a uniform fashion. Thus, Jones lost the right to be reinstated after failing to comply with this policy.

On the retaliation claim, the 11th Circuit clarified the law of the Circuit by holding that temporal proximity, for the purpose of establishing the causation prong of a prima facie case of FMLA retaliation, should be measured from the last day of an employee’s FMLA leave until the adverse employment action at issue occurs. In Jones’ case, he was terminated the day he returned from FMLA leave, so the temporal proximity between the end of FMLA leave and termination was as close as it could get. In addition, the Court found that Daniels’s alleged comment that “corporate was not going to like the fact that [Jones] was taking FMLA leave during the ‘survey window'” corroborated Jones’s claim that his FMLA leave and his termination were not “wholly unrelated.”

Accentia also offered inconsistent reasons for Jones’ discharge, which will almost always preclude summary judgment.

Pro tip: When terminating an employee, a decisionmaker should be able to identify the reasons for termination at the time of the decision, and communicate them to the employee. If the employee files a lawsuit, the employer needs to be consistent with its reasons for the termination, unless it discovers new, previously unknown evidence of misconduct.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

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