An employer who terminated an employee after he took intermittent FMLA leave for diabetes won its case, and recently won again on appeal.

According to both courts, the employee appeared to be trying to play it both ways with his FMLA leave. Even if the employer was wrong about that, the courts said, the employer's honest belief defeated the plaintiff’s interference and retaliation claims under the Family and Medical Leave Act.

Here’s what happened: Michael Shipton worked for Baltimore (Maryland) Gas & Electric as an underground gas mechanic. He also had a Commercial Drivers License. That CDL will be important later.

Mr. Shipton has Type 2 diabetes. In August 2017, he submitted an FMLA medical certification completed by a physician’s assistant stating that he would need intermittent leave for what sounds like very severe hypoglycemic episodes. The physician’s assistant said that Mr. Shipton

is an uncontrolled diabetic with very fluctuant blood sugars; often with episodes of hypoglycemia which leads to the following (and not-all-inclusive): sweats, shakey [sic], blurred vision, dizzy, clammy, balance disturbance, foggy/confused, [headaches], nauseous.

(Bracketed material from the district court's decision.)

I didn't even know that "fluctuant" was a word, but apparently it is. Anyway, did you notice that the medical certification didn’t say anything about diabetic neuropathy? That will be important later.

The medical certification also said that Mr. Shipton could not perform the essential functions of his position when he was having a hypoglycemic episode.

BG&E accepted the medical certification and approved Mr. Shipton for intermittent FMLA leave.

Mr. Shipton submitted a new medical certification in January 2018 from the same physician’s assistant reporting essentially the same information, and nothing about neuropathy. Once again, BG&E honored the certification.

In February 2018, Mr. Shipton received what the court called a “B-minus” performance evaluation that noted his unreliable attendance. The review acknowledged that his absences in the second half of 2017 were covered by the FMLA but noted that his absences in the first half of 2017 were not. The review also criticized him for giving insufficient notice before taking vacation days off, which would not be an FMLA issue. But also sick days, which could have been.

In April 2018, Mr. Shipton missed three days of work because of diabetic neuropathy (pain in his feet). On April 6, he was ordered to report to Occupational Health to have his blood sugar tested. His blood sugar was fine. The next day, Mr. Shipton went on vacation to Jamaica.

After he returned from vacay, he was called to Occupational Health again and told that his CDL would have to be suspended because of his documented hypoglycemia. To have the suspension lifted, he would have to present a medical clearance letter from his physician’s assistant.

(I thought the timing of the suspension of his CDL looked questionable, but Mr. Shipton didn’t challenge it in his lawsuit, so I assume it was legitimately based on the relevant regulations from the U.S. Department of Transportation.)

The plot thickens

On April 25, 2018, Mr. Shipton submitted another medical certification in support of continued intermittent FMLA leave. This one was from a physician who had been treating Mr. Shipton for about a month. According to the MD, Mr. Shipton would need 1-2 days of intermittent leave every 3-6 months for neuropathy. He said that Mr. Shipton had not had a hypoglycemic episode since his relationship with the MD began.

BG&E approved the request for intermittent leave based on neuropathy.

Then, in May, the same physician provided a letter in support of lifting Mr. Shipton’s CDL suspension. He said that the neuropathy was not severe and reiterated that Mr. Shipton had not had a hypoglycemic episode since March 2018.

On May 30, 2018, the physician’s assistant also provided a letter in support of lifting Mr. Shipton’s CDL suspension. Mind you, this is the same PA who provided the August 2017 and January 2018 medical certifications.

Here’s what she said this time (emphasis is mine; ellipses and brackets in district court decision):

There have been no hypoglycemic events in over 2 years. He does not experience blurred or double vision, paresthesis, dizzy/clammy, sweaty, shaky, headaches, nausea, or vomiting. . . [Plaintiff] has not had recurring (2+) disqualifying hypoglycemic reactions within 5 years as listed in the FMCSA guidelines. . . [Plaintiff] routinely monitors his blood sugars and they have been controlled - not in the range of hypo or hyperglycemia.

("FMCSA" stands for the Federal Motor Carrier Safety Act.)

According to the district court, “And so, [the PA] certified that Plaintiff was fit for duty ‘in all capacities’ and that Plaintiff should be permitted to ‘resume driving utilizing [h]is CDL credential immediately and without restriction.’”

Hmmm. Sorry -- I meant, Mmmh . . .

Mr. Shipton called in sick on June 4, 2018. When he returned to work after his June 4 absence, he got called in for a “fact-finding investigation” and was asked about the inconsistent medical documentation. The court decisions don’t provide details, but apparently his answers were not satisfactory because BG&E terminated his employment not long afterward.

Mr. Shipton sued BG&E, its affiliates, and a bunch of its individual managers alleging, among other things, FMLA interference and retaliation. U.S. District Court Judge Lydia Kay Griggsby (an Obama/Biden appointee) granted summary judgment to BG&E, and her decision was affirmed last week by a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit.

What 5 things did this employer do right?

It’s not uncommon for an employer to suspect that an employee is taking advantage of FMLA leave. Doing anything about it is more of a challenge. What can we learn from BG&E?

No. 1: If the leave request looks legit, don’t fight it. Every time Mr. Shipton asked for intermittent FMLA leave, his request was granted. He submitted three FMLA medical certifications: One in August 2017, one in January 2018, and one in April 2018. Every one was honored. That was a huge help to BG&E in showing to the courts that it was not trying to stand in the way of (or “interfere with”) Mr. Shipton’s rights under the FMLA or retaliate against him for taking FMLA leave.

No. 2: Pay attention to what the medical certification says. Mr. Shipton’s first two medical certifications discussed hypoglycemia and its symptoms in detail but said nothing about neuropathy. Because neuropathy is associated with diabetes, a lot of employers might have waved him through. I confess that I probably would have. But good for BG&E for noticing that neuropathy was not covered by his then-current medical certification. (And remember that the uncertified, neuropathy-related absences occurred right before Mr. Shipton was due to go on his Caribbean vacation.)

No. 3: Comply with any other applicable laws. Because Mr. Shipton did not challenge it in court, I assume that the CDL issue arose only because it was “that time” for him under the regulations. If his hypoglycemic condition disqualified him from driving a commercial motor vehicle, then BG&E had no choice about what to do.

No. 4: If it looks like a rat and smells like a rat, it just might be a rat. If an employee’s use of FMLA leave seems suspicious, do conduct an investigation and follow what you find to its logical conclusions, as BG&E did, and – with the prior blessing of your employment counsel – take appropriate action. In the case of Mr. Shipton, his physician’s assistant took a position in Letter #3 that was diametrically opposed to the position that she took in Medical Certifications #1 and #2. (She reportedly conceded in her deposition that her letters contradicted each other.) It also appeared that some personal motivations were at play here: (1) Mr. Shipton took the days off for neuropathy in April 2018 right before he was getting ready to leave for his Jamaican vacation, and (2) he appears to have really, really wanted to hang on to his CDL.

No. 5: The “honest belief” rule is a wonderful thing. This is a very helpful legal principle in discrimination law, and it applied in this FMLA case, too. If an employer honestly believes an employee committed what would be a legitimate ground for termination, and takes action against the employee based on that belief, then the action is not unlawful. This rule applies even if it turns out that the employer was mistaken.

Here's an example. Let’s say Betty is a 60-year-old accountant. Betty’s co-workers tell HR that they suspect she is embezzling from the company. The employer conducts an investigation, and determines that embezzlement has indeed been going on and that there is strong reason to believe that Betty is the guilty party. Betty is terminated for suspected dishonesty, and she sues for sex and age discrimination. Then, during the discovery phase of the litigation, it becomes apparent that the employer was wrong and that the real culprit was Betty's evil 35-year-old co-worker, Jason, who set her up. Uh-oh.

Under the honest belief rule, the employer is likely to win the lawsuit anyway because it honestly believed that Betty was embezzling and terminated her based on that honest belief. In other words, Betty's termination -- although very unfair and unfortunate for her -- was not based on her sex or her age.

(On the other hand, Jason will have some explaining to do.)

No. 6 (BONUS): We lawyers aren't the only hired guns in the world. Employers, do watch out for health care providers who don't seem . . . how shall I say it? . . . completely reliable. By no means all, but some seem to be willing to say whatever their patient needs for them to say. Unfortunately, the "second opinion" option under the FMLA is not much help to employers in these situations. (That's a subject for its own blog post, so for now you'll have to take my word for it.) But in non-FMLA situations where you need medical information about an employee -- for example, when considering reasonable accommodations under the Americans with Disabilities Act -- you may be able to send the employee to a more qualified, or more reliable, practitioner.