Nobody Likes a Liar

By Kathleen J. Jennings (

The FMLA is one of those employment statutes that can give companies all sorts of headaches, and one of the biggest headaches can come from managing intermittent FMLA leave. So the termination of an employee in Alabama who got caught abusing intermittent FMLA (for migraine headaches) was probably satisfying on some level to his former employer. (Prichard v. Hyundai Motor Mfg. of Ala., LLC , M.D. Ala., No. 2:18-cv-00556, 10/7/19).

Tommy Prichard worked for Hyundai Motors in Montgomery, Alabama. Prichard was diagnosed with migraine headaches, and by 2013, he was being treated by a physician for his migraines. When Prichard had a migraine, he was unable to work and became bedbound. As a result, Prichard sought intermittent FMLA leave in 2013. Prichard was approved for intermittent FMLA leave and was entitled to take such leave as long as he did it honestly and with integrity and gave proper notification of his leave in accordance with Hyundai’s policies. Prichard renewed his FMLA certification every six months as required, and though the exact wording in the certifications varied slightly, Prichard’s physician generally certified that “[o]n the days [Prichard’s] Migraine HA’s flare [sic] he will be unable to work. He is bed bound unable to function.”

Then Hyundai noticed a pattern in which Prichard often took FMLA leave on Fridays before non-production days. So Hyundai decided to hire a private investigator to investigate and surveil Prichard’s use of FMLA leave. The private investigator observed that Pritchard left his home and stayed out most of the day on a day that he had called out because he had a migraine. (Remember—the migraines made him bed bound and unable to function). When confronted with the evidence, Pritchard became defensive and basically told his employer that it was none of their business what he was doing that day. Not surprisingly, Pritchard was terminated.

Pritchard sued his employer and alleged that he has been terminated in retaliation for using FMLA leave. The U.S. District Court for the Middle District of Alabama granted summary judgment to the employer. Why? Because the employer articulated a legitimate, non-retaliatory reason for Pritchard’s termination: Prichard was terminated because Hyundai had a good faith belief that Prichard misused FMLA leave (based on the pattern of missed Fridays and the private investigator’s report), and Pritchard was unable to show that this reason was a pretext for discrimination.

The lesson for employers is this: if you have a good faith belief that an employee is abusing intermittent FMLA (or any other policy or benefit), you can conduct a necessary investigation to determine whether there is, in fact, abuse. Indeed, the Pritchard decision, the Court noted that “Nothing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave.” However, employers need to be consistent in how and why they conduct such investigations. Furthermore, the use of a qualified and competent third party to conduct the investigation can provide compelling evidence of the misconduct, if discovered.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at

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